Opinion
A152609
02-28-2018
MAJOR EBERHART, Petitioner, v. THE SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent; THE PEOPLE, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 50713693)
In an earlier appeal involving petitioner Major Eberhart, we reversed sentence enhancements associated with prior convictions and remanded for a retrial on the prior conviction allegations. Eberhart now seeks a writ of mandate compelling respondent superior court to grant his motion to dismiss the prior conviction allegations. He contends no good cause was shown for the failure to retry the prior conviction allegations within 60 days of the filing of the remittitur in the superior court, in violation of his statutory speedy trial rights under Penal Code section 1382. We agree with Eberhart and shall direct issuance of the writ of mandate.
All further statutory references are to the Penal Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
After a jury convicted Eberhart of first degree murder and related offenses, the superior court sentenced him to serve 91-years-to-life in state prison. On appeal, we rejected various claims of error asserted by Eberhart, but we agreed with his claim that there was no evidentiary support for the imposition of sentence enhancements associated with prior convictions. We reversed and remanded for a retrial of the prior conviction allegations and for resentencing.
Eberhart sought review in the Supreme Court on four separate grounds. The Supreme Court granted review limited to the question of whether the prosecution's gang expert had improperly relied upon testimonial hearsay in violation of Eberhart's constitutional right to confront witnesses. The Supreme Court deferred briefing pending resolution of a related issue in People v. Sanchez (2016) 63 Cal.4th 665. After the Supreme Court issued its decision in Sanchez, it transferred Eberhart's case back to this court for reconsideration in light of Sanchez.
Upon remand from the Supreme Court, we again rejected Eberhart's challenge to the gang expert's testimony. Our disposition therefore remained unchanged from the disposition contained in our original opinion, and reads as follows:
"Following remand from the Supreme Court, the disposition remains unchanged from the disposition contained in our opinion filed on September 1, 2015:
"The trial court is directed to modify the abstract of judgment to delete the 5-year gang enhancement (§ 186.22, subd. (b)(1)(B)) associated with count one and to replace it with the 15-year minimum term for parole eligibility required by section 186.22, subdivision (b)(5). The sentence enhancements for a prior strike associated with count one (§ 667, subd. (e)(1), 1170.12, subd. (c)(1)), a prior serious felony (§ 667, subd. (a)(1)), and prison priors (§ 667.5, subd. (b)) are reversed. The matter is remanded for a retrial of the prior conviction allegations and for resentencing.
"In all respects, the judgment is affirmed. The petition for a writ of habeas corpus is denied."
Notably, the first sentence of the last paragraph contains an obvious clerical error consisting of an omitted word. The sentence should read, "In all other respects, the judgment is affirmed." The word "other" was inadvertently omitted. Plainly, the judgment was not affirmed in "all respects," because the two preceding sentences make clear that certain sentence enhancements were reversed and the matter was remanded for a retrial of the prior conviction allegations supporting those enhancements. Nevertheless, the clerical error was not corrected and the decision became final.
This court issued the remittitur on June 30, 2017. The clerk of this court served a copy of the remittitur by mail on the clerk of the superior court, Eberhart's appellate counsel, the First District Appellate Project, and the Attorney General, who represented the People on appeal. The superior court filed the remittitur on July 3, 2017.
Under section 1382, subdivision (a)(2), Eberhart was entitled to a retrial on the prior convictions allegations within 60 days of July 3, 2017, the date the remittitur was filed in the superior court, unless there was good cause for the failure to conduct the retrial within that period. The 60-day period expired on September 1, 2017. On September 7, 2017, after the 60-day period had lapsed, the matter was set over to September 18, 2017.
On September 18, 2017, before a trial date had been set, Eberhart moved to dismiss the prior conviction allegations that were the subject of this court's remand. He claimed the prosecution had failed to retry the prior conviction allegations within 60 days of the filing of the remittitur, in violation of the speedy trial statute (§ 1382, subd. (a)(2)). Eberhart argued there was no good cause for the delay.
The People opposed the motion. In their opposition, the People claimed the district attorney's office had not received notification of the remittitur's issuance until September 6, 2017, after the 60-day speedy trial period had already run. Once the district attorney office was notified, the matter was immediately placed on calendar. The People claimed it was understandable why the need for an expeditious response was overlooked. According to the People, an internal superior court memorandum that accompanied the remittitur contained instructions that were inconsistent and mutually exclusive. The memorandum included three categories to classify the effect of a remittitur—"the judgment is reversed and remanded," "the judgment to be modified with instructions," and "the judgment is affirmed—no further action needed." All three boxes were checked. Under the category for reversal and remand, the memorandum specified as follows: "The 60 day speedy trial right commenced on 7/3/17 (the date the remittitur was filed in this court). The case must be calendared promptly so that a new trial date can be timely set."
The People argued that the sentence in the last paragraph of the disposition stating that the judgment was affirmed "[i]n all respects" "may have confused the trial court and delayed awareness of the need to place the matter back on calendar for retrial of the prior convictions allegations." The People therefore contended there was good cause for the delay in setting the matter for trial "in the form of excusable neglect." Nevertheless, the People admitted that it was clear from the disposition as a whole that the case was remanded for a retrial of the prior conviction allegations and for resentencing.
The trial court denied the motion to dismiss following a hearing on October 10, 2017. In explaining its reasoning for the denial, the court first stated that the district attorney's office was not given timely notice of the filing of the remittitur, as follows: "First, the D.A.'s office was clearly never given notice by the clerk of the Appellate Court. We did not include them in the notices sent out. There's a defense argument that that D.A. must devise whatever procedures necessary to learn that a remittitur has been filed, and I think the procedure that they have enlisted is that the court give them notice or that the A.G. give them notice, and neither of those occurred. [¶] So, with regard to the D.A.'s office, there's no fault of their own, and there can be no negligence when you've not been given fair notice. Once they were given notice, the matter was calendared immediately."
The court next explained that it had received timely notice and understood the matter needed to be retried, but attributed the delay to "confusion" and a belief that the clerk would follow up: "The Court had notice, and I think that the confusion wasn't so much with the order; it's just that how and when that order was going to be perfected. I myself was transferred from a trial department to now, which is a branch court. We don't handle felony trials except for in very unusual cases when there's overload from Martinez, so it was my belief that at the time that we weren't going to handle it out here, and that Martinez would handle it. And I was under the belief that the appellate clerk would inform the master calendar and the criminal supervising judge that such a trial needed to occur and would give notice of that. [¶] None of that—none of that occurred, so although the Court was given notice, I think there wasn't confusion about the order so much as there was confusion about how and when that order was to be borne out, and that was not done. I don't believe that was carelessness. I just think it was a misunderstanding of procedure, so you go on to look at other factors." The court concluded the confusion "would constitute excusable neglect" and noted that Eberhart had suffered no prejudice as a result of the short delay in light of the fact he was already serving a life sentence that would be unaffected by the retrial of the prior conviction allegations.
The court set the matter for trial on the prior conviction allegations. Eberhart filed a petition for writ of mandate and prohibition in this court and sought of stay of the trial. We granted a stay of the trial and directed the People to file points and authorities in opposition to the petition. We advised the parties that we may issue a peremptory writ in the first instance pursuant to Code of Civil Procedure section 1088 and Palma v U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171 (Palma).
DISCUSSION
Section 1382, subdivision (a) provides in relevant part that, "unless good cause to the contrary is shown," a court must order an action dismissed in a felony case when "the cause is to be tried again following . . . an appeal from the superior court" and the defendant "is not brought to trial" "within 60 days . . . after the filing of the remittitur in the trial court." (§ 1382, subd. (a) & (a)(2).) The 60-day statutory time period in section 1382 applies following an appellate court's remand to the superior court for a retrial limited to prior conviction allegations. (People v. Martin (1978) 87 Cal.App.3d 573, 576.)
The statutory speedy trial rights provided for in section 1382 and related sections of the Penal Code " 'are supplementary to and a construction of the state constitutional speedy trial guarantee." (People v. Martinez (2000) 22 Cal.4th 750, 766.) "[S]ection 1382 constitutes a legislative endorsement of dismissal as a proper judicial sanction for violation of the constitutional guarantee of a speedy trial and as a legislative determination that a trial delayed more than 60 days is prima facie in violation of a defendant's constitutional right." (Sykes v. Superior Court (1973) 9 Cal.3d 83, 89, fn. omitted.)
When a motion to dismiss for a statutory speedy trial violation pursuant to section 1382 is made before trial, or before retrial after issuance of the remittitur, "the moving party is not required to affirmatively show that he has been prejudiced by the delay; and, in the absence of a sufficient showing of good cause for the delay, a dismissal under the section is mandatory." (Plezbert v. Superior Court (1971) 22 Cal.App.3d 169, 171-172; see People v. Martinez, supra, 2 Cal.4th at p. 766; People v. Wilson (1963) 60 Cal.2d 139, 151.)
Here, it is undisputed that Eberhart timely moved to dismiss after the 60-day statutory speedy trial period had run and before the matter had been retried or even set for a retrial of the prior conviction allegations. The dispute turns upon whether there was good cause for the delay.
"What constitutes good cause for the delay of a criminal trial is a matter that lies within the discretion of the trial court. [Citations.] In reviewing trial courts' exercise of that discretion, the appellate courts have evolved certain general principles. The courts agree, for example, that delay caused by the conduct of the defendant constitutes good cause to deny his motion to dismiss. Delay for defendant's benefit also constitutes good cause. Finally, 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, on the other hand, does not constitute good cause. Neither does delay caused by improper court administration." (People v. Johnson (1980) 26 Cal.3d 557, 570, fns. omitted.)
In this case, the record does not demonstrate good cause for the delay. The People advance two basic arguments as to why the failure to act on the remittitur was excusable. First, they complain that the wording of the disposition in the appellate opinion and the internal superior court memorandum that accompanied it limited the court's ability to comprehend and act on the remittitur. But this argument was raised by the People below and expressly rejected by the court. The superior court clarified that it in fact had notice of the remittitur and understood it but did not act because it believed another court would handle the matter. Even if the court believed the remittitur was ambiguous, it had a duty to interpret the disposition in light of the appellate opinion and the law. (People v. Dutra (2006) 145 Cal.App.4th 1359, 1368.) As the People conceded below, it is "clear" when the disposition is read as a whole that the case was being remanded for a retrial of the prior conviction allegations and for resentencing.
Second, the People claim that although the superior court recognized the need for an immediate retrial, "something was lost in translation" and "neither a notice to the District Attorney nor the notice to reset issued." The People describe the court's actions as a "clerical oversight" that was "regrettable" but that still constituted good cause for the delay. We disagree. Because the superior court understood the prior conviction allegations needed to be retried but no action was taken as a result of an apparent "misunderstanding of procedure," there was no good cause for the court's inaction. (See People v. Johnson, supra, 26 Cal.3d at p. 570 [improper court administration does not constitute good cause].) "[T]he risk of unexplained clerical error or neglect must rest with the prosecutor." (Plezbert v. Superior Court, supra, 22 Cal.App.3d at p. 173.)
As support for finding good cause for the delay, the superior court cited the fact that the district attorney did not timely receive notice of the remittitur. But the fact the district attorney was unaware of the remittitur until the speedy trial deadline had lapsed does not constitute good cause for the delay under the circumstances presented here. In Sykes v. Superior Court, supra, 9 Cal.3d at page 94, the Supreme Court held that a lack of notice to the district attorney was not good cause for failure to comply with the statutory speedy trial statute where the Attorney General timely received notice, reasoning that the Attorney General is the " 'chief law officer of the state . . . with direct supervision over every district attorney . . . .' " In this case, it is undisputed the Attorney General was timely served with the remittitur.
We agree with the People and the superior court that Eberhart suffered no prejudice as a result of the brief delay in retrying his prior conviction allegations, but the absence of prejudice is irrelevant when no good cause has been shown for the delay. (People v. Allen (1979) 96 Cal.App.3d 268, 275; Plezbert v. Superior Court, supra, 22 Cal.App.3d at pp. 171-172.) If the People cannot show good cause for the delay when a defendant brings a pretrial motion to dismiss under the speedy trial statute, "there is no balancing of the justification for the delay against the prejudice to the defendant." (People v. Allen, supra, 96 Cal.App.3d at p. 275.)
Under the circumstances, we are compelled to grant relief and issue a writ of mandate directing the superior court to dismiss the prior conviction allegations. We reach this result reluctantly but conclude as a matter of law that the justification for the delay offered by the People does not constitute "good cause" as that term is used in section 1382. While Eberhart will benefit from the dismissal of the prior conviction allegations, we observe that he still faces a life sentence with a lengthy period of time before he would even be eligible for parole. As the People noted in the proceedings before the superior court, even after the reversal of the enhancements associated with prior convictions, Eberhart could still be sentenced to serve at least 50 years to life in state prison.
Eberhart also seeks a writ of prohibition restraining the superior court from retrying the prior conviction allegations, but such relief is unnecessary in light of the dismissal of the allegations, which the People are barred from refiling. (See People v. Martin, supra, 87 Cal.App.3d at pp. 575-577.)
We have reached our decision after notice to all parties that we might act by issuing a peremptory writ in the first instance and after considering the opposition from the real party in interest. (Palma v. U.S. Industrial Fasteners, Inc., supra, 36 Cal.3d at p. 180.) Petitioner's right to relief is obvious and no purpose would reasonably be served by plenary consideration of this issue. (Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1241.)
DISPOSITION
A peremptory writ of mandate shall issue directing respondent superior court to vacate its order denying Eberhart's motion to dismiss prior conviction allegations and to enter a new and different order granting the motion. The stay previously issued by this court shall be dissolved upon the issuance of the remittitur.
/s/_________
McGuiness, Acting P.J. We concur: /s/_________
Siggins, J. /s/_________
Jenkins, J.
Retired Presiding Justice of the Court of Appeal, First Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------