Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDING; petition for writ of mandate. No. KA089602
William S. Pitman for Petitioner.
No appearance for Respondent.
ZELON, J.
Steve Cooley, District Attorney, Irene Wakabayashi and Roberta Schwartz, Deputy District Attorneys, for Real Party in Interest.
The criminal case of Jonathan O’Brien and his co-defendant was sent for trial to a courtroom. The judge in that courtroom, however, remained engaged in trial on the final day during which O’Brien could be brought to trial consistent with his speedy trial rights. The parties waited the full day. At 4:15 p.m., the trial court swore in a panel of 17 jurors, then immediately sent the jurors home until late the following morning, at which time the court quashed the venire. O’Brien filed a petition for writ of mandate seeking dismissal of the criminal charges against him because he was not brought to trial within the statutory time period. We grant the petition.
FACTUAL AND PROCEDURAL BACKGROUND
O’Brien was charged with attempted murder (Pen. Code, §§ 664/187) and assault with a firearm (§ 245, subd. (a)(2)). O’Brien consistently asserted his right to a speedy trial; his co-defendant, Joshua Davis, did not. Thursday, December 9, 2010, was the final day on which O’Brien could be brought to trial under section 1382. On Wednesday, December 8, the case was transferred to a courtroom for trial with orders to appear at 8:30 the following morning; the judge in that courtroom was then engaged in trying a matter with two juries.
All further statutory references are to the Penal Code unless otherwise indicated.
The court spoke with the parties in the O’Brien matter at 1:36 p.m. on December 9, observing that “[W]e’re a little bit busy today just right now.” The court said, “I anticipate that we’ll have a panel this afternoon at 4:00 and I’ll be more than happy to swear the panel.”
Based on an inquiry by counsel for O’Brien, William Pitman, the trial court confirmed that it was “in the midst of an argument on a two-jury trial and that there are three defense lawyers who are still going to argue today.” Based on this information, counsel attempted to move for dismissal based on O’Brien’s speedy trial rights and section 1382. The court refused to entertain the motion, stating that counsel was ordered back at 4:00 p.m., and “At that time you may have a valid motion; at this time you do not.” O’Brien’s counsel began to argue that bringing in and swearing a jury panel at 4:00 p.m. when the defendants would have to be placed on a bus back to jail at that time was insufficient, but he was interrupted by the trial court stating that it regularly proceeded until 4:15 or 4:30. The court refused to permit any more discussion and ended the hearing at 1:38 p.m.
At 4:07 p.m., the court returned to the O’Brien matter and called for a jury panel to be brought in. When Davis’s counsel, Anthony Robusto, objected to bringing in a panel while the defendants wore jail clothing, the court blamed the defendants for causing the time problem by disqualifying a judge under Code of Civil Procedure section 170.6: “I’m going to do what I can to protect your client’s speedy trial rights, Counsel. You folks filed a 170.6 yesterday challenging an open court. The court would have been picking a jury bright and early this morning. The Court feels the best way to preserve Mr. O’Brien’s right to speedy trial today, to the extent I can, is to swear a panel.”
Counsel for O’Brien said, “Your Honor, I have clothing, ” and Davis’s counsel said, “Whoa, whoa, ” but the court announced, “Bring in the jurors.” Robusto asked, “Wait a minute. Do I get a chance to be heard?” The court emphasized the urgency: “I’ve got five minutes to go.” Robusto said, “I’m sorry about your time constraints. Okay? The bottom line is that from day one with respect to Mr. O’Brien we’ve been prepared and willing... to waive time. Now I was told from a master calendar court that I was being assigned to this courtroom for trial.” The court interjected, “If-” and Robusto attempted to continue speaking, but the court again spoke: “If you folks are willing to waive time, that solves our problem, doesn’t it.”
Robusto said, “Wait a second. [¶] First of all, I was told by this master calendar court in Department F that there was going to be no jurors here today, that I was not-there would be no need for any clothing today and that we were to report to your courtroom for purposes of status and setting up schedule. [¶] The next thing that’s happening, you’ve ordered a panel in and my client is not properly attired. [¶] That is not right. I’m sorry. This is just not right.”
Pitman said, “Your Honor, I’ve been here since 8:30 this morning. We have clothing for Mr. O’Brien, it’s in the hallway. We’ve been prepared. All day we’ve been prepared. The last day to start the trial was November 8. I have been prepared. There are other issues surrounding discovery that was just given to us today.” The court demanded, “Are you making a motion to continue? Is that what I’m hearing?” Pitman said, “No. I’m making a motion to exclude new evidence that’s been in the prosecution’s-” but was unable to continue, because the trial court said, “We’re not hearing that right now. We’ll trail that to tomorrow.”
Robusto requested that his client not be present for the swearing of the panel due to his lack of proper dress, and Pitman joined in the request as to O’Brien. The court approved, stating, “Thank you for that idea, Mr. Robusto. It had not even occurred to me. I’m attempting to preserve speedy trial rights. Okay.”
Pitman spoke again. “It’s now ten after 4:00. There are 17 jurors in the hallway. This is a case where there are 60 peremptory challenges. This is not a panel that’s going to hear this case. The Court is still engaged in trial. The Court has been engaged in trial. I’ve been observing argument all day. I’ve been observing final argument in a trial that this Court is presently engaged in.” The court responded, “Uh-huh, ” and Pitman continued, “The arguments are continuing. The Court recessed that trial until 9:00 a.m. So this Court is not prepared to try this case. This is not a true panel.” The court said that there were 25 other jurors upstairs who had not been summoned.
Pitman asked to be heard, and the court refused, asked him to sit down, instructed that the defendants be removed, and told the clerk to bring in the panel. The prosecutor asked that the court take waivers personally from the defendants with respect to their absence.
Davis waived his presence, but Pitman asked that his client be brought out in his civilian clothing. The court answered, “We do not have time, sir. I have three minutes.”
Pitman said, “Your Honor, I’ve been here since 9:00 a.m. If someone told me we were bringing in a panel, I would have had the clothing. It’s in the hallway. We’ve been prepared. So I understand the Court’s pressured. I understand that. But I would ask for some fairness here too.” The court ordered, “Put them back, ” presumably referring to seating the defendants at the counsel table. The court called for the jury panel.
Robusto asked that the defendants be “uncuffed.” The bailiff said no, while the court answered, “Not under the circumstances right now.” O’Brien appeared before the jury panel “in shackles and in jail clothing.”
Robusto made what he characterized as a motion for a mistrial: “This is totally unfair. This is a total violation of anything I understand to be due process, equal protection, just pure fairness to a defendant. And I’m getting boot strapped big time and you’re acting unprofessional. You’re not being judicial and it’s just not right. I don’t know why you’re doing this. I have no idea why this is happening, and I do not understand it in any shape, fashion, or form. I am totally, totally perplexed by your attitude.”
The court merely said, “Hold on. We’ve got jurors, ” and turned its attention to the entering jury panel. Robusto asked for a ruling, and the court said, “Overruled.”
The court clerk swore in the panel. The court said, “All right. Folks, as you notice, it’s a quarter after 4:00 in the afternoon. We got a late start on this matter. So we’re going to excuse you folks for the evening recess.” The court ordered the jury back the following day at 11:00 a.m. The court ordered counsel back the following morning at 10:30 a.m.
The following day, the court denied O’Brien’s motion to dismiss based on a violation of his speedy trial rights, but quashed the jury venire that had been sent to the courtroom the day before, beginning anew with jurors who had not seen the defendants in their jail clothing.
O’Brien filed a petition for writ of mandate requesting that the trial court be ordered to dismiss the charges against him on the ground that he was not brought to trial within the time provided by statute. We issued an order to show cause and stayed the trial court proceedings with respect to O’Brien.
DISCUSSION
I. O’Brien Was Not Brought to Trial Within the Time Period Provided by Section 1382
“The state and federal Constitutions guarantee a defendant facing criminal charges the right to a speedy trial. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) This right protects an accused from facing an unduly lengthy period in which criminal charges are pending. [Citation.] In California, one of the principal statutes implementing the constitutional right to a speedy trial is section 1382.” (People v. Hajjaj (2010) 50 Cal.4th 1184, 1193 (Hajjaj).) Section 1382, subdivision (a) provides in relevant part that the court shall order a felony action to be dismissed, unless good cause to the contrary is shown, when the defendant is not brought to trial within 60 days of the defendant’s arraignment on an indictment or information, absent a general waiver of time or consent to a trial date beyond the statutory period. “In other words, in the absence of waiver or consent on the part of the defendant, section 1382 ‘requires dismissal when a defendant is not “brought to trial” within the statutorily prescribed period after the filing of the information, ’ unless good cause is shown. [Citations.]” (Id. at p. 1194.)
The question for this court, therefore, is whether O’Brien was brought to trial on December 9, 2010, when at approximately 4:15 p.m., a panel of 17 jurors was brought into the courtroom; sworn in before a defendant whose requests to change into his civilian clothes and to be unshackled were denied without any finding that extraordinary circumstances required his continued physical restraint; and then sent home until the following day. We conclude that O’Brien was not brought to trial on that date within the meaning of section 1382.
As the California Supreme Court recently affirmed in Hajjaj, supra, 50 Cal.4th at page 1194, the central case on the question of when a defendant has been brought to trial is Rhinehart v. Municipal Court (1984) 35 Cal.3d 772 (Rhinehart). In Rhinehart, the jury was selected on the final day-November 27-but then was directed to return on December 3. (Rhinehart, at pp. 775-776.) The Rhinehart court held that “an accused is ‘brought to trial’ within the meaning of section 1382 when a case has been called for trial by a judge who is normally available and ready to try the case to conclusion. The court must have 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, supra, 35 Cal.3d at p. 780, fns. omitted.) “[S]wearing the panel, by itself, is not sufficient” to bring a defendant to trial; the other requirements for trial commencement must also be met. (Id. at p. 780, fn. 12.) Accordingly, in Rhinehart, the California Supreme Court held that the defendant had not been brought to trial on the day the jury was hurriedly impaneled because “the jury was impaneled in order to avoid dismissal and the court was not ‘available or ready to try the case to conclusion.’” (Hajjaj, supra, 50 Cal.4th at p. 1196.)
Here, the court was not available and ready to try the case to conclusion, it had not committed its resources to the trial (Rhinehart, supra, 35 Cal.3d at p. 780), and it was not “available to commence defendant’s trial in any meaningful sense.” (Hajjaj, supra, 50 Cal.4th at p. 1196.) The court was engaged in another trial on the final day of the statutory period, had been engaged in hearing argument all day, and had recessed that matter until 9:00 a.m. the following day. It turned to the O’Brien matter at 4:07 p.m., but at that point the court had left itself without time to engage in meaningful proceedings or even to observe the defendants’ constitutional rights. The court brought in an inadequate venire of 17 jurors in a two-defendant attempted murder case in which the parties would have been entitled to 60 peremptory challenges. Because the court did not have time to permit the defendants to change clothes and to be unshackled, the defendants appeared before the prospective jurors in the inherently prejudicial situation of wearing jail clothes and shackles. (Estelle v. Williams (1976) 425 U.S. 501, 503-505 [right to a fair trial requires that defendants not be forced to wear prison clothing when appearing before a jury].)
The court made no finding that visible physical restraints were justified by any particular need; it merely said, “Not under the circumstances right now, ” when the defense asked for the shackles to be removed. (People v. Stevens (2009) 47 Cal.4th 625, 633 [“visible physical restraints must survive heightened scrutiny and be justified by a particular need”]; People v. Duran (1976) 16 Cal.3d 282, 290-291 [“a defendant cannot be subjected to physical restraints of any kind in the courtroom while in the jury’s presence, unless there is a showing of a manifest need for such restraints”].)
Mere minutes before the defendants needed to be returned to their custodial facility, the court rushed all the participants through a swearing-in, then sent the jurors away until later the following day so that the court could continue first thing the next morning with the other case it was hearing. During this brief session, the court resisted all efforts by counsel to ensure regular proceedings and to protect their clients’ rights and refused to listen to any of counsel’s requests to be heard unless the court believed they might lead to a time waiver or a request for a continuance.
The trial court was explicit that its objective was to avoid the time bar of section 1382, ostensibly to “protect” O’Brien’s speedy trial rights. The only thing the trial court protected, however, was the “speed” portion of speedy trial rights; the “trial” and the “rights” were casualties of the rush to empanel and send home any jury at the eleventh hour under any conditions. Indeed, the conditions were so prejudicial and inappropriate that the venire had to be quashed on its return. Bringing in a panel of jurors under conditions that necessitated the panel’s dismissal before any further proceedings could take place demonstrates that the proceedings were a tactic to avoid the deadline for trial rather than a true commencement of trial. Under these circumstances, to declare that O’Brien was brought to trial within the meaning of section 1382 on the last day of the statutory period “would be to accord significance to a ‘mere device to avoid the impact of the statute.’ [Citation.]” (Hajjaj, supra, 50 Cal.4th at p. 1197.)
This case is similar to People v. Cory (1984) 157 Cal.App.3d 1094 (Cory). There, on the final day of the statutory period, the trial court called a jury panel at 3:08 p.m., swore in the jurors, and seated 12 jurors. (Id. at p. 1099.) Then, the court told the panel that it was in the midst of another trial and ordered the jurors back the following morning at 11:00 a.m. (Ibid.) Relying on Rhinehart, supra, 35 Cal.3d 772, we concluded that the defendant had not been brought to trial within the meaning of section 1382: “Construing the ‘“objective record”’ [citation] in light of the standards enunciated in Rhinehart, it cannot be said that appellant was brought to trial on May 16, 1983. The trial court repeatedly acknowledged that it was in the middle of another trial and therefore could not proceed with appellant’s, beyond the brief impanelment process, until the following day. Thus, as of the critical tenth day the court was not ‘available and ready to try the case to conclusion, ’ nor had it ‘committed its resources to the trial’ of appellant.” (Cory, at p. 1100.) Here, as in Cory, the adjournment of the case until 11:00 the following morning “was expressly taken to enable to the court to conclude another trial in the interim.” (Ibid.) Both in Cory and in the present case, the trial court’s “clearly expressed unavailability due to another pending trial establishes that the proceedings here were insufficient to meet the Rhinehart standard of judicial readiness for and commitment to the trial process on the critical day.” (Id. at pp. 1100-1101.)
The District Attorney attempts to distinguish Cory on the basis that the Cory court did no work on the Cory matter while hearing the other case, while here, the judge reviewed the motions in limine filed in this matter sometime on December 9 and 10. The District Attorney argues that the court’s purported “multitasking” by reviewing motions in limine in this matter while the other matter proceeded indicates that the court had committed resources to the O’Brien matter. At best, the District Attorney shows that the trial court committed a portion of its resources to the O’Brien matter at some point on December 9 and 10. Committing resources to a pending matter, however, is only part of what is required to bring an accused to trial-the court must also, inter alia, be normally available and ready to try the case to conclusion (Rhinehart, supra, 35 Cal.3d at p. 780). The trial court here, like the trial court in Cory, was not ready and available because it was occupied with another trial. (Cory, supra, 157 Cal.App.3d at pp. 1100-1101; Rhinehart, supra, 35 Cal.3d at p. 780.) Therefore, just as in Cory, the court’s unavailability due to its engagement in an ongoing trial established that the summary impanelment of a jury and recess until the following day was insufficient to constitute judicial readiness for and commitment to the trial process. (Cory, at pp. 1100-1101.) The District Attorney has offered no persuasive basis for distinguishing Cory.
The District Attorney finally raises a series of policy arguments as to why the charges should not be dismissed here. First, he contends that this court should not “lose sight” of the legislative purpose of section 1382 by dismissing this case. According to the California Supreme Court, however, dismissal is precisely what the Legislature intended in this circumstance. As the Supreme Court has explained, section 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 [the prescribed period] is prima facie in violation of a defendant’s constitutional right.’ [Citation.]” (Rhinehart, supra, 35 Cal.3d at p. 776.) We are, moreover, mindful of the Supreme Court’s observation that it (and by extension, this court) “should not encourage imaginative ways to avoid the clear intent of the Legislature as enunciated in the Penal Code.” (Id., at p. 779.)
Next, the District Attorney focuses on the good faith of the prosecutor and the court, the minimal nature of the delay, and the undesirable incentive established by holding fast to the speedy trial rule: “the trial judge should be encouraged to enthusiastically offer to work harder, not evade work by declining to accept new trials until the last possible moment, after a prior trial verdict is reached. The unintended consequence of such a result would encourage judges to do less work and be less productive.” We decline to accept the District Attorney’s implicit suggestion that we adopt something resembling a harmless error test for a violation of section 1382 where a delay is minimal and the parties acted in good faith. We do not doubt the good faith of the prosecutor here, or of the defense attorneys for that matter. From the record before us, it appears that the attorneys were prepared to proceed, followed the instructions of the court and faithfully executed their duties with respect to this matter. The trial court, however, failed to take steps to ensure that the matter would be brought to trial on the final day of the statutory period. Clearly aware of the mounting problem early in the day, the court nonetheless left the case until the final minutes of the court day, at which point it was unable to offer more than “mere lip service to the fundamental right to a speedy trial.” (Hajjaj, supra, 50 Cal.4th at p. 1196.) We disagree with the District Attorney that holding fast to the constitutional guarantee of a speedy trial, as implemented by section 1382, creates a poor incentive for the judges of the Superior Court, and instead believe that following the well-established jurisprudence in this area is not only mandatory (§ 1382; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455) but will encourage trial courts to assess their ability to commence a trial at a point in time when available judges may be located when a case has reached or nears the final day of the statutory period.
Because the jury was impaneled in order to avoid dismissal at a point when the court was not available or ready to try the case to conclusion (Hajjaj, supra, 50 Cal.4th at p. 1196), we conclude that O’Brien was not brought to trial within the meaning of section 1382 within the period prescribed by that statute.
II. No Good Cause Was Shown for the Failure to Bring O’Brien to Trial
The remaining question under the statute is whether good cause was shown for not dismissing the action. Under section 1382, if the defendant is not brought to trial within the statutory period, the court must order the action dismissed unless good cause to the contrary has been shown. (Rhinehart, supra, 35 Cal.3d at pp. 780-781.)
The District Attorney has not argued that there existed good cause for the failure to bring O’Brien to trial on December 9, 2010, nor are we able to identify any good cause. The parties had waited for the entire court day for their case to be called in the trial judge’s courtroom, and there is no indication in the record that any effort was made on the final day to secure an open courtroom with an available judge with whom to proceed. Instead, the court planned to detain the parties until 4:00 and then to swear in a jury panel, as its comments on the record at the 1:30 p.m. hearing showed. There is no indication in the record that the delay was caused by the conduct of the defendant, occurred for his benefit, or that there arose any unforeseen circumstances beyond the fact that the court remained occupied in its other trial. Unavailability of a judicial officer due to court congestion does not constitute good cause for failing to bring a defendant to trial, absent exceptional circumstances. (Hajjaj, supra, 50 Cal.4th at p. 1198.)
The Legislature has determined that when a defendant asserts his or her speedy trial rights and the state fails to bring him or her to trial within the time permitted by section 1382, in the absence of good cause the remedy for the violation of speedy trial rights is dismissal. (§ 1382, subd. (a); Rhinehart, supra, 35 Cal.3d at pp. 780-781.) Pursuant to section 1382, subdivision (a), O’Brien is entitled to the dismissal of the instant charges against him.
DISPOSITION
The petition for writ of mandate is granted. The trial court is ordered to dismiss the charges against O’Brien pursuant to Penal Code section 1382, subdivision (a) due to the failure to bring O’Brien to trial during the statutory period.
We concur: PERLUSS, P. J. WOODS, J.