Opinion
E067497
05-09-2018
THE PEOPLE, Plaintiff and Appellant, v. DEANDRE SHAMARE BROWN, Defendant and Respondent.
Michael A. Ramos, District Attorney, and James R. Secord, Deputy District Attorney, for Plaintiff and Appellant. Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FSB1502591) OPINION APPEAL from the Superior Court of San Bernardino County. Ronald M. Christianson, Judge. Affirmed. Michael A. Ramos, District Attorney, and James R. Secord, Deputy District Attorney, for Plaintiff and Appellant. Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Respondent.
I
INTRODUCTION
The People appeal from a judgment of dismissal of a criminal action against defendant and respondent, Deandre Shamare Brown, charging him with possession for sale of cocaine base (Health & Saf. Code, § 11351.5; count 1) and possession for sale of a controlled substance (Health & Saf. Code, § 11378; count 2). The People contend the trial court abused its discretion in denying the People's request for a continuance of trial, and granting defendant's motion to dismiss the case. The People argue they demonstrated good cause for a continuance. In addition, they argue they were entitled to a trial continuance under the 10-day grace period applicable under Penal Code section 1382, subdivision (a)(2)(B), even without a showing of good cause.
We agree the trial court violated Penal Code section 1382, subdivision (a)(2)(B) by granting defendant's motion to dismiss during the 10-day grace period, but we conclude the error was harmless because the People were not ready for trial. The prosecutor revealed that it was highly unlikely the People would be ready within the 10-day grace period. We therefore affirm the judgment.
II
FACTUAL AND PROCEDURAL BACKGROUND
The summary of facts is taken from the transcript of defendant's preliminary hearing. --------
While on patrol at approximately midnight on July 27, 2015, San Bernardino Police Officer Simpson noticed defendant drop a bag after defendant looked at Officer Simpson's patrol car. Officer Simpson retrieved the bag and found in it what appeared to be cocaine base, methamphetamine, marijuana, and a razor blade. Officer Simpson arrested defendant and took him into custody.
The People filed a felony complaint against defendant. Defendant pled not guilty to charges of possession for sale of cocaine base (Health & Saf. Code, § 11351.5; count 1) and possession for sale of a controlled substance (Health & Saf. Code, § 11378; count 2). Following a preliminary hearing, the People filed an information, and defendant, who was out of custody, was arraigned on the information on August 22, 2016.
At the pretrial hearing on September 23, 2016, the court scheduled the trial for October 11, 2016. The trial court noted that October 21, 2016, was the last day to try the case within the 60-day speedy trial limitation period. (Pen. Code, §§ 686, 1382, subd. (a)(2).)
At the trial readiness conference (TRC) on October 7, 2016, defendant's trial attorney informed the court that he was unavailable for trial because he was engaged in another criminal trial, which he anticipated would not end until November 10, 2016. Defense counsel requested the trial court continue the TRC to October 14, 2016, at which time he would report on the status of his other trial. Over the People's objection, the court ordered the TRC continued to October 14, 2016.
At the TRC on October 14, 2016, defense counsel reported that defendant's trial attorney was still in trial in another matter and requested "the Court find good cause to trail this matter behind his trial." Defense counsel stated that the other trial was projected to be completed by November 10, 2016. The trial court continued the matter to November 4, 2016, in the event the other trial ended early. The court indicated it did not want to continue the matter to November 14, 2016, because that would be too long of a continuance, particularly since the other trial might end early and the matter was being continued for good cause.
The trial court found good cause to trail the matter to November 4, 2016, for a TRC. The court stated that, at the TRC on November 4, 2016, defense counsel was to advise as to whether his other trial was on track to be completed by November 10, 2016, or earlier. The court added that if the other trial ended before the TRC on November 4, 2016, the court anticipated it would start defendant's trial on November 7, 2016. The November 4, 2016, minute order erroneously stated that the TRC was set for November 14, 2016. The absence of any minute order or reporter's transcript for proceedings conducted in this matter on November 4, 2016, indicates there were no proceedings on November 4, 2016.
On November 14, 2016, the parties appeared for a TRC in this matter. Defendant remained out of custody. The prosecutor informed the court that the People were not ready for trial because their criminalist was on vacation in Iceland and would not be back until the end of November. The prosecutor requested a "brief" continuance to reassign the case to another criminalist who would need to reanalyze the narcotics that formed the basis of defendant's charges. The prosecutor told the court she anticipated the People would need approximately "four days or so" to "move forward" with the reanalysis and approximately five days to completely reanalyze the drugs. The prosecutor noted that the People had previously been ready for trial since September 23, 2016, and had objected to continuing the trial on October 14, 2016.
The prosecutor further noted that the court had actually continued the matter to November 4, 2016, but somehow it was scheduled in the minute order for November 14, 2016, instead of November 4, 2016. The prosecutor argued there was good cause to continue the trial under Penal Code section 1382, because the People's key witness was unavailable on November 14, 2016, and a short delay would not prejudice defendant, particularly since he was not in custody.
Defense counsel announced ready for trial and objected to a continuance. Defense counsel noted defendant had not at any time waived time and was asserting his right to a speedy trial. Defense counsel added that the prosecution should have known prior to the current date that its criminalist was unavailable, and should have made alternative arrangements for another criminalist. Defense counsel moved to dismiss the case. The trial court granted the motion, stating that there was no basis for continuing the matter.
III
DENIAL OF THE PEOPLE'S REQUEST FOR A CONTINUANCE
The People contend the trial court abused its discretion by denying the People's motion to continue the trial, and granting the defendant's speedy trial motion to dismiss. We conclude the trial court erred under Penal Code section 1382, subdivision (a)(2)(B) in dismissing the case within the 10-day grace period.
A. Defendant's Right to a Speedy Trial
"Under Penal Code section 1382, a defendant charged with a felony is entitled to be brought to trial within 60 days of arraignment unless (1) the defendant has expressly or impliedly consented to having trial set for a date beyond that period, or (2) there is 'good cause' for the delay. (Pen. Code, § 1382, subd. (a)(2).) When a defendant's trial has been properly continued to a date beyond the 60-day period, section 1382 further provides that the defendant is entitled to be brought to trial on the new trial date 'or within 10 days thereafter.' (§ 1382, subd. (a)(2)(B).)" (Smith v. Superior Court (2012) 54 Cal.4th 592, 595 (Smith); see also Pen. Code, §§ 686, cl. 1., 1049.5.)
The Legislature and courts have "recognized that the [P]eople, the defendant, and the victims and other witnesses have the right to an expeditious disposition, and to that end it shall be the duty of all courts and judicial officers and of all counsel, both for the prosecution and the defense, to expedite these proceedings to the greatest degree that is consistent with the ends of justice." (Pen. Code, § 1050, subd. (a).) However, the Legislature and courts have also made clear the Legislature intended that the prosecution was entitled to use the entire statutory period provided for by Penal Code section 1382 to prepare a case for trial.
In the instant case, the record shows that defendant did not waive his right to a speedy trial within 60 days of arraignment. The trial was set to begin on October 11, 2016, with the 60-day period to try the case running on October 21, 2016. At the TRC on October 14, 2016, defense counsel informed the court that defendant's trial attorney was engaged in a trial that was expected to last until November 10, 2016. Defense counsel therefore requested the court to find good cause to trail the trial beyond the 60-day cut-off, until after defendant's attorney completed his other trial. Over the prosecution's objection to a trial continuance, the trial court found good cause to continue the trial based on defendant's trial attorney's unavailability to try the case.
B. Good Cause
Factors relevant to a determination of good cause under Penal Code section 1382 to continue a trial beyond the 60-day period include: "(1) the nature and strength of the justification for the delay, (2) the duration of the delay, and (3) the prejudice to either the defendant or the prosecution that is likely to result from the delay. [Citations.] Past decisions further establish that in making its good-cause determination, a trial court must consider all of the relevant circumstances of the particular case, 'applying principles of common sense to the totality of circumstances . . . .'" (People v. Sutton (2010) 48 Cal.4th 533, 546; Smith, supra, 54 Cal.4th at p. 598; see also Pen. Code, § 1050, subds. (e), (g).)
Relevant federal constitutional factors include: "Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." (Barker v. Wingo (1972) 407 U.S. 514, 529, 530.) Generally, the trial court has broad discretion to determine whether good cause exists to continue a trial, and this court applies an abuse of discretion standard when reviewing a trial court's good-cause determination. (People v. Sutton, supra, 48 Cal.4th at p. 546; Smith, supra, 54 Cal.4th at p. 598.)
It is undisputed that on October 14, 2016, there was good cause to continue the trial beyond expiration of the 60-day period to try the case, based on defendant's trial attorney's unavailability. It is well established that "delay arising from unforeseen circumstances, such as the . . . unavailability of counsel or witnesses constitutes good cause to avoid dismissal." (People v. Johnson (1980) 26 Cal.3d 557, 570.)
C. Ten-day Grace Period
The issue here is whether on November 14, 2016, the trial court committed prejudicial error when it denied the People's motion for an additional continuance of the trial, over defendant's speedy trial objection. The People contend the trial court erred in dismissing the case before expiration of the 10-day grace period to bring the case to trial under Penal Code section 1382. The People argue the 10-day grace period did not begin running until defense counsel was actually unconditionally available and announced ready for trial on November 14, 2016. The People therefore conclude they had until November 24, 2016, to try the case.
In Smith, supra, 54 Cal.4th at page 608, the California Supreme Court discussed the 10-day grace period in the context of a trial continuance involving properly joined codefendants, wherein one of the defendants objected to the continuance. The Smith court notes that, by enacting the 10-day grace period in Penal Code section 1382, the Legislature has determined that setting the trial within the 10-day grace period "will never be an unreasonable period of time to allow the court and prosecution to bring the case to trial." (Smith, at p. 606.) It is therefore "unnecessary for the prosecutor to make a particularized showing or for the trial court to make a case-specific determination that there is good cause for a continuance within the 10-day grace period in order to justify a trial continuance . . . within the 10-day period. With respect to the defendant who causes the case to exceed the 60-day period, the legislative history and our case law make clear that the trial court and the prosecution are entitled to a 10-day grace period without any particularized showing of good cause." (Ibid.; italics added.)
Because "10 days will never be an unreasonable period of delay to allow the prosecution and the trial court to prepare for trial," there is always good cause to continue a defendant's trial within the 10-day grace period. (Smith, supra, 54 Cal.4th at p. 606.) Therefore, here, the People were not required to show good cause for a continuance of the trial, if the continuance was within the 10-day grace period. (Barsamyan v. Superior Court (2008) 44 Cal.4th 960, 978 (Barsamyan) [10-day grace period protects the defendant's right to a speedy trial, enables the court to ensure judicial resources are available, and protects the People by allowing them time to prepare].)
Defendant cites Tudman v. Superior Court (1972) 29 Cal.App.3d 129, 133, for the proposition that the 10-day grace period did not apply after the court continued the case beyond the October 21, 2016, 60-day cut-off to try the case. Therefore, the trial was required to begin on the first trial date set after October 21, 2016, unless there was good cause for further delay. Tudman does not support this proposition. Tudman states that "[t]he effect of the 1959 amendment [to Penal Code section 1382] is to allow a 10-day grace period for bringing the case to trial after the last day to which a defendant has consented. It does not start a new grace period following a postponement made over the defendant's objection." (Id. at p. 133.)
Here, although defendant did not waive his right to a speedy trial, defendant did not object to the first trial continuance beyond the October 21, 2016, cut-off. On October 14, 2016, his attorney requested the trial court to find good cause to trail the trial beyond October 21, 2016, until defendant's trial attorney was available to try the case. Generally, such consent to a continuance by defense counsel alone, without that of the client, satisfies defendant's right to be tried within 60 days. (Townsend v. Superior Court (1975) 15 Cal.3d 774, 781-782, 784.) The 10-day grace period therefore applied after defense counsel's initial request on October 14, 2016, to continue the trial beyond October 21, 2016. The 10-day grace period did not begin running until defense counsel announced on November 14, 2016, that he was actually available for trial. (Id. at pp. 782-783; Barsamyan, supra, 44 Cal.4th at p. 970.) "In order to initiate the 10-day grace period, counsel must announce readiness for trial, an announcement that comprises a claim of readiness for immediate trial." (Barsamyan, at p. 970.)
"'As of the moment a defendant announces "ready" on the last continuance date . . . he is submitting himself to being brought to trial immediately. At that moment, defendant would have a right to immediate trial but for the fact that the 10-day grace period automatically comes into operation.'" (Barsamyan, supra, 44 Cal.4th at p. 970, quoting Bryant v. Superior Court (1986) 186 Cal.App.3d 483, 498-499.) In initiating the 10-day grace period, "a defendant is representing that he or she is ready to go to trial immediately, with the understanding that the prosecution has a 10-day grace period in which to actually bring the case to trial." (Barsamyan, at p. 971.)
In the instant case, the trial court was required under Penal Code section 1382 to grant the prosecutor's trial continuance request so long as the trial was set to begin within that 10-day grace period ending on November 24, 2016.
D. Harmless Error
Even though the 10-day grace period applied and had not expired when the trial court dismissed the case on November 14, 2016, the dismissal was harmless error because the prosecutor indicated that the People would not be ready for trial within the 10-day grace period. The prosecutor informed the court that the prosecution was "willing to move forward as soon as another criminalist is assigned. And within four days or so we should be ready to move forward with the reanalysis by a new criminalist who will be available for the trial." The prosecutor further stated: "I will have to re analyze the drugs completely. And I need approximately five days to do so." The prosecutor did not estimate in total how many days it would take to reassign the case to another criminalist and then reanalyze the drugs. However, the prosecutor indicated that once the case was reassigned, after about four days, the new criminalist would begin completely reanalyzing the narcotics, and this would take approximately five days.
Under these circumstances, it was highly unlikely the prosecution would have been ready for trial within the 10-day grace period. In addition, the prosecutor made no representation the prosecution would be ready for trial within 10 days and did not object to dismissal on the ground the 10-day grace period had not yet expired. Such inability to be ready for trial within 10 days normally would have required dismissal of the case upon expiration of the 10-day grace period. It therefore is not reasonably probable the People would have achieved a more favorable result had the trial court not erred in prematurely dismissing the case within the 10-day grace period. (People v. Watson (1956) 46 Cal.2d 818, 836.) Such error was therefore harmless.
It also is not reasonably probable the trial court would have granted the prosecution a continuance beyond expiration of the 10-day grace period, because at that point, the prosecution would have already been given a 10-day continuance over the defendant's objection. October 21, 2016, was the last day to try the case within the 60-day speedy trial limitation period. The trial was continued and trailed until November 7, 2016, for good cause, because defendant's attorney was unavailable. Due to clerical mistake, it was continued an additional week to November 14, 2016. At no time did defendant expressly waive his right to a speedy trial.
On November 14, 2016, the prosecutor informed the court its criminalist was unavailable and therefore the People needed a brief continuance to retain another expert criminalist to reanalyze the drug evidence. The prosecutor did not provide any valid justification for not having made prior arrangements for reassigning another criminalist who would be available for trial on November 14, 2016. The prosecutor also did not state when she discovered the criminalist was unavailable or when the criminalist became unavailable. It further appears that the prosecution failed to subpoena the criminalist or any alternate criminalist, to ensure the prosecution's criminalist would be available for trial. In addition, there was no showing the People would have been prejudiced by dismissal of the case, because they likely could refile charges against defendant.
Under the totality of these circumstances, including the fact the trial court dismissed the case in furtherance of defendant's right to a speedy trial, it is unlikely the trial court would have found good cause for granting the prosecution an additional continuance beyond the 10-day grace period. The trial court's denial of a continuance at that point was reasonably probable and would not have been an abuse of discretion. (Smith, supra, 54 Cal.4th at p. 598; People v. Sutton, supra, 48 Cal.4th at p. 546.) We therefore conclude dismissal of the case prematurely within the 10-day grace period was harmless error, because it is not reasonably probable the People would have achieved a more favorable result had the trial court not erred in prematurely dismissing the case. (People v. Watson, supra, 46 Cal.2d at p. 836.)
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J. We concur: SLOUGH
J. FIELDS
J.