Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County, Maureen Aplin, Temporary Judge (pursuant to Cal. Const., art. VI, § 21), and Donna L. Crandall, Judge, Super. Ct. No. DL025659
Kristin A. Erickson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Pamela Ratner Sobeck, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ARONSON, ACTING P. J.
The juvenile court found E. Z. (born in 1990) committed vandalism for the benefit of a criminal street gang and declared him a ward of the court pursuant to Welfare and Institutions Code section 602. Minor argues the juvenile court violated his right to a speedy jurisdictional hearing. As explained below, we affirm the judgment.
I
Facts and Procedural Background
On the morning of August 9, 2006, police officers detained minor and four companions after discovering gang graffiti on a Fullerton apartment building. Minor admitted he had written the graffiti. The graffiti and other evidence connected him with the oldest and largest criminal street gang in the city.
Following a jurisdictional hearing in April 2007, the court found minor committed vandalism for the benefit of a criminal street gang. (Pen. Code, § 594, subds. (a), (b); § 186.22, subd. (d).) Minor also admitted allegations in a separate petition that he unlawfully possessed a switchblade knife on February 17, 2007. The court declared him a ward, committed him to a juvenile facility for 45 days (less credit for time served), and ordered probation on various terms and conditions including restitution, community work, and graffiti removal.
II
Discussion
A. Continuance Motions
The jurisdictional hearing was continued at minor’s request to March 15, 2007. On March 15, the court granted the parties’ request to trail the hearing to March 19. The parties informed the court the district attorney had a “witness problem” and therefore was not ready for trial. On March 21, the court trailed the case until the following day after learning a key law enforcement witness had pneumonia.
On March 22 — the last day to commence the hearing without a continuance (Welf. & Inst. Code, § 682, subd. (e)) — a deputy district attorney sought a one-day continuance because the trial deputy was seeing her doctor for a pregnancy-related medical problem and a key witness against minor remained ill. Minor objected and moved for dismissal. The court denied the motion, “trailed” the matter to the following day, and ordered minor and his mother to appear.
On March 23, a deputy district attorney moved to continue the hearing to April 2, citing the out-of-custody minor’s previous waivers of time and lack of prejudice to minor, the incapacitating health condition of the trial deputy, and an understanding there were “some witness issues.” The deputy asserted a continuance would give another deputy time to “pick up the case and be able [to] try it.” He also noted the trial deputy’s medical condition had been unforeseen and the district attorney was not seeking “a continuance because we want more time to prepare.” He also asserted juvenile law permitted the dismissal and refiling of juvenile court petitions, so nothing would be gained by a dismissal.
Minor objected and moved to dismiss the petition. Counsel complained “witness issues” did not constitute good cause to continue because the district attorney had not disclosed the trial deputy’s specific medical problem and whether the necessary witnesses had been subpoenaed. He also argued the deputy’s illness did not constitute good cause because the case was not complex and could have been assigned to another deputy. Finally, he asserted his client was prejudiced by the “nature of the charges . . . hanging over his head now for eight months.”
The court found good cause and continued the hearing to April 2 based on the trial deputy’s illness: “[I]t’s a fairly serious condition. And we found this out yesterday afternoon.”
On April 2, the parties agreed to trail the hearing to April 4, and at minor’s request, the matter again trailed to April 6. On April 6, the deputy district attorney answered ready, stated she had been prepared all week, but explained her primary witness was scheduled for a two-week vacation beginning the following day. Minor’s counsel was engaged in another trial in the same department and therefore unavailable to begin minor’s hearing. The court trailed the matter to April 9 on the understanding it would grant a continuance on that day.
On April 9, the deputy district attorney noted her primary witness was on vacation and unavailable but she could proceed on minor’s other petition. The court stated it was unavailable in the afternoon for personal reasons. Noting the trial deputy had been prepared to begin the hearing the previous week but minor’s counsel had been unavailable, the court found good cause to continue the hearing to April 23. The court noted minor’s objection and denied the motion to dismiss. The jurisdictional hearing began April 30, 2007.
B. Good Cause Existed to Continue the Jurisdictional Hearing
Statutory provisions establish specific deadlines for processing a wardship petition. (In re Chuong D. (2006) 135 Cal.App.4th 1303 (Chuong D.).) Welfare and Institutions Code section 657, subdivision (a), requires the court to set the petition for hearing within 30 days of filing. Section 682, subdivision (b), allows the court to continue the hearing only upon a showing of “good cause,” other than consent of the parties. (See also Cal. Rules of Court, rule 5.776.)
Minor argues the district attorney did not comply with Welfare and Institutions Code section 682 and court rules for obtaining a continuance. Specifically, he complains the district attorney failed to file written notice two days before the hearing, supported by affidavits or declarations detailing facts showing good cause for the continuance. He also asserts the district attorney did not show good cause to excuse compliance with these requirements.
Despite minor’s claim to the contrary, he failed to object, and thus forfeited, any claim based on the district attorney’s failure to comply with the statutory notice and proof requirements to obtain a continuance. Minor did argue in the juvenile court the circumstances did not constitute good cause to continue. But delay arising from unforeseen circumstances, such as the unexpected illness or unavailability of counsel or witnesses, constitutes good cause. (People v. Johnson (1980) 26 Cal.3d 557, 570.) Here, the court did not abuse its discretion in finding good cause to continue based on the trial deputy’s illness. Minor fails to demonstrate the court’s implied findings concerning the complexity of the case or the unavailability of other deputies to try the case constituted an abuse of discretion. Nor did the length of the continuance, a delay of little over a week to April 2, constitute an abuse of discretion. Finally, the unavailability of minor’s counsel and the district attorney’s witness supported the court’s decision to grant a second continuance. (Cf. Batey v. Superior Court (1977) 71 Cal.App.3d 952, 957 [second continuance lacked good cause where no effort to prepare another attorney to take case after first continuance].) In sum, minor has not demonstrated the court acted arbitrarily or capriciously in granting a brief continuance. (In re Lawanda L. (1986) 178 Cal.App.3d 423, 428.)
Minor concedes the trial deputy’s sudden onset of pregnancy-related difficulties constituted good cause to excuse lack of written notice on March 22. He claims he did object on procedural grounds on March 23, but we find no support in the record for this claim. He also argues any objection on April 6 or April 9 would have been futile because the court already indicated it would continue the hearing.
Even assuming a violation of minor’s statutory right to a speedy hearing occurred, minor failed to show prejudice. (Chuong D., supra, 135 Cal.App.4th at p. 1311 [because minor “waited until after the jurisdictional hearing had been completed, and the court had found against him, before bringing his speedy trial claim to the appellate court, he must affirmatively demonstrate he was prejudiced by the delay”].) Prejudice in this sense means a delay that has impaired the ability to defend against the charged violation. Examples of prejudice include the unavailability of a witness, the loss of evidence, or the impairment of a witness’s memory. (See People v. Lowe (2007) 40 Cal.4th 937, 946 speedy trial violation under the California Constitution.) “The mere fact that evidence sufficient to establish the prosecutor’s case was introduced against the defendant only after his speedy trial rights were violated could never be considered the requisite prejudice to justify reversal of the judgment.” (Chuong D., supra, 135 Cal.App.4th at p. 1312.) Minor cites a need to correct juvenile court practices, complains about the inconvenience to minor and his family of having to make unnecessary court appearances, and alleges harassment by law enforcement during the pendency of the gang charges. But this is not the type of prejudice warranting reversal. (Chuong D., supra, 135 Cal.App.4th 1303; Cal. Const., art. VI, § 13.)
Minor argues counsel rendered constitutionally ineffective assistance (Strickland v. Washington (1984) 466 U.S. 668) by failing to seek pretrial writ relief, where a showing of prejudice is not required. Generally, where the record on appeal sheds no light on why counsel acted or failed to act in particular manner, a claim of ineffective assistance must be rejected unless counsel was asked for explanation and failed to provide one or there could be no satisfactory explanation. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) The record sheds no light on why counsel failed to petition for writ relief. Counsel may have concluded a petition was unlikely to succeed given evidence of good cause and the abuse of discretion standard of review. Counsel may have decided additional delay was not in minor’s best interest given the apparent ability of the district attorney to refile the case, and the resulting inconvenience to minor and his family. In any event, given our conclusion the court had good cause to continue, minor has not shown a reasonable probability the result of the proceeding would have been different had counsel sought writ relief. (Strickland, supra, at p. 694.)
III
Disposition
The judgment is affirmed.
WE CONCUR: FYBEL, J., IKOLA, J.