Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Original proceedings; petition for a writ of mandate/prohibition to challenge an order of the Superior Court of Orange County, Patrick Donahue, Judge, Super. Ct. No. 07CF0080
Wallin & Klarich and Gary E. Hayes for Petitioner.
No appearance for Respondent.
Tony Rackauckas, District Attorney, and Brian F. Fitzpatrick, Deputy District Attorney, for Respondent.
OPINION
ARONSON, J.
Jeffrey Joseph challenges the superior court’s order delaying his trial beyond the 60-day period from arraignment mandated by Penal Code section 1049.5 (subsequent undesignated statutory references are to this code). In a pretrial motion, Joseph and his codefendant, Terrance Clarke, objected that admission of statements each made to police implicating the other as a pimp (§ 266h, subd. (a)) would violate their Sixth Amendment confrontation right because both planned to invoke the Fifth Amendment right not to testify. (People v. Aranda (1965) 63 Cal.2d 518 (Aranda); Bruton v. United States (1968) 391 U.S. 123 (Bruton).) The trial court agreed and responded by severing their trials. Clarke’s trial commenced on the 60th day, and the trial court postponed Joseph’s trial until Clarke’s concluded later that week.
We agree with Joseph that the delay violated his statutory right to a speedy trial. (§ 1049.5.) No good cause existed to set the trial date beyond 60 days (§§ 1382, 1383) because the trial court could have redacted the portion of the statements Joseph and Clarke made that implicated each other, thereby safeguarding both the Sixth Amendment right at stake and the defendants’ right to a speedy trial. Because redaction would have preserved the option of a joint trial, no good cause existed to sever and postpone Joseph’s trial, and we therefore grant his petition for a writ dismissing the pimping charge for failure to try it within 60 days. (§ 1382.) And because this is the second dismissal, the charge must be dropped altogether (§ 1387); we therefore direct the trial court to enter an order accordingly.
I
Factual and Procedural Background
On October 12, 2006, Santa Ana Vice Squad Officer Raul Rivera observed Joseph pull his vehicle into a parking lot known for prostitution activity on Harbor Boulevard. Two female passengers exited Joseph’s vehicle, solicited an undercover officer, and were later arrested. Joseph had already departed in his vehicle, tailed by Officer Ronald Anzai. Anzai followed Joseph to a hotel, where he arrested him for pimping. According to Anzai, Joseph admitted the charge and also identified Clarke as a pimp. Anzai arrested Clarke and interviewed him separately. According to Anzai, Clarke admitted the charge and claimed Joseph also pimped their female companions.
On November 6, 2006, the district attorney charged Joseph and Clarke with one count each of pimping. The prosecutor agreed to dismissal of the charges on the 60th day on January 8, 2007, because a material witness could not be located, but refiled the charges the same day. (See § 1387, subd. (a) [one dismissal bars refiling of misdemeanor charges but not a felony].)
The parties met in chambers with the trial court to discuss pretrial motions on March 30, 2007, the 59th day of 60 under section 1049.5. To remedy the Aranda/Bruton issue, defendants suggested the trial court empanel two juries to hear the case, one for each defendant. Under this approach, Joseph’s jury would be excused when Officer Anzai testified concerning Clarke’s statement, and therefore would not hear that Clarke implicated Joseph, and vice versa. The trial court rejected this procedure because, “in a case that is this short, trying to do two jury selections and put the case on at the same time . . . would be logistically very difficult in this courtroom.” The court ordered the parties to meet informally to discuss whether they could reach an agreement to redact defendants’ statements and eliminate the confrontation problem.
When the matter reconvened on Monday, April 2d, the 60th day, the prosecutor alerted the trial court the defendants rejected his proposed redactions. The trial court confirmed defendants believed the redactions would not eliminate potential prejudice from admission of the statements. The court, however, did not inquire concerning the nature or extent of the prosecutor’s proposed redactions or how, with the redactions, a jury would nevertheless understand each defendant to be implicating the other in their respective statements.
Having rejected both redaction and defendants’ suggestion to empanel two juries, the trial court determined severance was necessary to eliminate the confrontation problem. Observing it was “impossible” to try both cases at the same time with “the exact same witnesses on each trial,” the court found good cause to continue one of them, and elected to proceed with Clarke’s because he was in custody. Joseph objected to delay of his trial beyond the 60-day statutory period, but the trial court overruled his objection, relying on its good cause finding. Joseph filed this writ petition when the court called his case for trial later that week, three days beyond the 60-day limitation.
After the parties completed their briefing on the petition, we requested supplemental letter briefs on two questions. First, would redaction of the statements petitioner and codefendant Clarke made to the police adequately safeguard their rights under Aranda and Bruton? And secondly, if the trial court erred in concluding defendants’ statements could not be redacted, was good cause absent for continuing petitioner’s trial?
Joseph answered both questions affirmatively. Noting each defendant allegedly made the same statement to Anzai — specifically that each “was working as a pimp and so was [the other]” (italics added), Joseph argues “the latter portion of each of these statements . . . could have been redacted.” Redacting the incriminating portion of the statements would have eliminated the confrontation issue, according to Joseph.
The district attorney does not dispute Joseph’s conclusion concerning redaction but instead faults him for reaching it too late. The district attorney contends the abuse of discretion standard applies. In essence, the district attorney argues the trial court’s determination good cause existed to postpone Joseph’s trial does not constitute an abuse of discretion because the trial court was entitled to rely on the defendants’ failure below to suggest an acceptable redaction. We now turn to the merits of the parties’ contentions.
In his initial informal reply to the writ petition, the district attorney argued based on a preliminary review of the trial court’s register of actions that good cause supported postponing petitioner’s trial because petitioner requested a severance. (See People v. Moran (1904) 144 Cal. 48, 56-57 [good cause exists when codefendants demand separate trials].) But the record, once it became available, makes clear petitioner did not seek a severance, and the district attorney abandoned this position.
II
Discussion
The district attorney is correct that the abuse of discretion standard governs our review of the trial court’s determination good cause existed to postpone trial beyond the statutory speedy trial deadline. (§§ 1382, 1383 [establishing good cause standard]; People v. Memro (1995) 11 Cal.4th 786, 852-853; Baustert v. Superior Court (2005) 129 Cal.App.4th 1269, 1275.) But no discretion exists to make errors of law and the issue of whether redaction adequately safeguards a defendant’s confrontation rights is a matter of federal constitutional law, subject to de novo review. (People v. Fletcher (1996) 13 Cal.4th 451, 465 (Fletcher).)
When a trial court is asked to rule on the admissibility of an extrajudicial statement by one defendant that implicates a codefendant, the court generally has three options: (1) permit a joint trial “if all parts of the extrajudicial statements implicating any codefendants can be and are effectively deleted without prejudice to the declarant”; (2) sever the trials “if the prosecution insists that it must use the extrajudicial statements and it appears that effective deletions cannot be made”; or (3) permit a joint trial but exclude the extrajudicial statement if effective deletions cannot be made. (Aranda, supra, 63 Cal.2d at pp. 530-531; Fletcher, supra, 13 Cal.4th at p. 460.) The trial court may also consider the option of a joint trial with separate juries. (Fletcher, supra, 13 Cal.4th at p. 468.)
Here, faced with statements in which each defendant basically said, “I’m a pimp and so is he,” the readily apparent solution was to redact “and so is he.” That way, neither defendant would implicate the other and, consequently, their right to confront adverse witnesses would not arise with respect to each other. The district attorney contends the trial court was entitled to rely on defendant’s position in the trial court that “the redactions would not . . . eliminate potential prejudice [from admission] of the statements . . . .” True, the defendants and the prosecutor advised the court they failed to agree on a mutually acceptable redaction, but as the proponent of the evidence, the burden rested on the prosecutor, not the defendant, to propose “effective deletions.” (Aranda, supra, 63 Cal.2d at pp. 531.) And ultimate responsibility for determining whether the redactions adequately safeguarded the defendant’s right of confrontation rested on the trial court. (Id. at p. 530 [duty lies with trial court to “adopt one of the following procedures . . .” listed above]; see, e.g., People v. Matola (1968) 259 Cal.App.2d 686, 693 [“Had the trial court closely examined the confession, including the proposed excisions, the ineffectiveness of the prosecutor’s assurances would have been evident”].)
We recognize the difficulty often inherent in navigating between positions staked out by the prosecutor and the defendant concerning redaction. On one hand, public policy favoring joint trials (People v. Coffman (2004) 34 Cal.4th 1, 40)and the presentation of all relevant evidence (Evid. Code, § 351) generally support admission of extrajudicial statements with appropriate redaction. On the other hand, defense counsel will understandably take a broad view of prejudice to his or her client’s confrontation rights, which must be jealously protected by the court because of their constitutional priority. And the statutory command to safekeep the defendant’s speedy trial right raised the stakes even higher for the trial court’s decision here.
As noted, the decision was the court’s to make, not the prosecutor’s or the defendant’s. We conclude the court made the wrong call. Redaction would have harmonized all the foregoing interests by preserving a joint trial with admission of relevant extrajudicial statements while also ensuring a speedy trial and, above all, protecting petitioner’s confrontation rights. The trial court’s conclusion a simple redaction would not protect the defendant’s confrontation rights was legal error, and the court’s decision to delay the trial hinged on this error. Had the trial court made the correct redaction decision, the court would have preserved both Jeffrey’s right of confrontation and his right to a speedy trial. In short, the purported necessity of sacrificing defendant’s speedy trial right to preserve his right of confrontation was a false dichotomy. Under these circumstances, we conclude the trial court’s decision to postpone petitioner’s trial was an abuse of discretion given the simple expedient of redaction.
Because redaction would have preserved the option of a joint trial, no good cause existed to sever and postpone Joseph’s trial, and we therefore grant his petition for a writ dismissing the pimping charge for failure to try it within 60 days. And because this is the second dismissal, the charge must be dropped altogether (§ 1387); we therefore direct the trial court to enter an order accordingly.
III
Disposition
Let a peremptory writ of mandate issue directing the trial court to dismiss the pimping charge against Joseph for twice failing to try it within 60 days. (§§ 1049.5, 1382.) The charge may not be refiled. (§ 1387.)
WE CONCUR: RYLAARSDAM, ACTING P. J., IKOLA, J.