Opinion
NOT TO BE PUBLISHED
APPEAL from an order dismissing an action of the Superior Court of Los Angeles County, Ct. No. NA078034, James B. Pierce, Judge.
Steve Cooley, District Attorney, Phyllis C. Asayama and Susan K. Dozier, Deputy District Attorneys, for Plaintiff and Appellant.
Linn Davis, under appointment by the Court of Appeal, for Defendant and Respondent.
KITCHING, J.
The People appeal from an order dismissing an action in which the information alleged that respondent Jonathan Daniel Dinkins committed count 1 - possession of cocaine for sale (Health & Saf. Code, § 11351) for the benefit of a criminal street gang (Pen. Code, § 186.22, subds. (b)(1)(A) & (d)) and count 2 - perjury (§ 118, subd. (a)), with allegations as to both counts that Dinkins was released on bail or on his own recognizance (§ 12022.1), suffered two prior felony convictions (§ 667, subd. (d)) and suffered two prior felony convictions for which he served separate prison terms (§ 667.5, subd. (b)). We reverse the order dismissing the action and remand the matter for further proceedings.
Subsequent statutory references are to the Penal Code.
FACTUAL and PROCEDURAL SUMMARY
On August 18, 2008, the information in the present case (case No. NA078034) was filed, Dinkins was arraigned, and he pled not guilty to the present charges. After numerous continuances, the master calendar court called the case on May 27, 2009, and, at the request of both parties, trailed the case to June 1, 2009, as “day 10 of 10, ” i.e., as the tenth and last day for trial for purposes of the section 1382, 10-day grace period discussed post.
The facts concerning the present offenses, which the information alleges occurred in 2008, are not pertinent to this appeal.
On Monday, June 1, 2009, the master calendar court called the case. Attorney S. Aval, standing in for Attorney John Roberts, Dinkins’s counsel, indicated as follows. Roberts wanted Aval to announce to the court that Roberts was ready except he was involved in a preliminary hearing that started the previous Friday afternoon and would end sometime on June 1, 2009. Roberts was asking that the court postpone the present matter until June 2, 2009, when Roberts would be available. Aval understood Dinkins was not waiving time on June 1, 2009, which was “ten of ten last day.”
The master calendar court proposed to find Roberts unavailable, find good cause to grant Roberts’s continuance motion, and continue the matter to June 2, 2009. The court stated, “I will make it eight of ten days so we will have some breathing room.” The court later indicated it would do its best on June 2, 2009, to assign the case to a trial department.
The prosecutor indicated she was ready as to the present case, and had moved to continue another case (case No. NA075548) in which Dinkins was the defendant. The court, without objection by the prosecutor, later stated, “Both cases go over to [June 2, 2009] as eight of the ten days in this department.”
Case No. NA075548 is not at issue in this appeal.
On June 2, 2009, Dinkins filed a section 1538.5 suppression motion which was set for hearing at 8:30 a.m. on June 2, 2009, in the master calendar court. On June 2, 2009, the prosecutor filed an opposition reflecting the hearing would be at the above date and time in the master calendar court. On that same date, counsel for both parties were present (with Dinkins in the lockup) when the master calendar court stated, “both cases will trail to tomorrow as nine of ten on the court’s own motion.”
On June 3, 2009, the master calendar court, during its morning session, called the matter and asked the prosecutor if she was ready. The prosecutor indicated she was ready but did not see Roberts. The court ordered both of Dinkins’s cases transferred to a trial court, and told the prosecutor to notify Roberts.
On June 3, 2009, the trial court called the matter and later asked, “They’re nine of ten for trial today, and there’s a motion pending in regards to the drug case [i.e., the present case]; is that correct?” Counsel for both parties replied yes.
The trial court indicated it was its understanding both parties were ready to proceed on the suppression motion. The prosecutor represented she had announced ready earlier that morning but was unable to locate a police officer whom the Long Beach Police Department had placed on call. The prosecutor requested to trail the matter. The prosecutor indicated she had two officers in court, but they could not testify as to what the absent officer would testify concerning the detention of Dinkins.
The following then occurred: “The Court: I’m not going to grant any further continuances or trailing, counsel, because it came from [the master calendar court]. If it was my own case, I might have a little bit more leeway. But because it came from [the master calendar court], it’s nine of ten on both cases. Either you’re ready or you’re not, and I waited now -- it’s almost 11:00 o’clock in the morning. [¶] [The Prosecutor:] I understand that, your Honor, and perhaps had I known that I would not get the officer, I would not have announced ready in [the master calendar court]. I would request in the alternative, since this is a case originating out of your court, that we go back to [the master calendar court] to deal with the continuance -- I’m sorry, the trial. I do believe the People have a right to trail at least to an afternoon if not to [the] last day.”
The following exchange then occurred: “The Court: Well, I thought the policy was that it was eight of ten. That was the last day. They were going to be treated as last day by the superior court, and it was no longer ten of ten that we’d have to trail it to and that the district attorney’s office was in agreement with that policy. [¶] [The Prosecutor:] I spoke to my head deputy this morning and our office is not in agreement with that policy, your Honor. [¶] The Court: Okay. I’m sorry to hear that. You’re unable to proceed on both cases. Both matters are dismissed.”
The June 3, 2009, minute order of the proceedings before the trial court reflects, “The People’s oral motion to continue trial/1538.5 Penal Code motion after having announced ready in [the master calendar court] is denied. [¶] The People are unable to proceed and the court orders the case dismissed pursuant to section 1382 Penal Code. [¶] The case is dismissed at 11:00 a.m., on day 9 of 10 pursuant to superior court policy.”
At all times above mentioned Dinkins was in custody and represented by counsel. At no time above mentioned did Dinkins’s counsel, Dinkins personally, or the prosecutor object to any of the above postponements of Dinkins’s trial (except, as indicated, on June 1, 2009, when Roberts sought a continuance even though Dinkins personally would not waive time).
CONTENTIONS
The People, represented by the district attorney, contend (1) the trial court abused its discretion by dismissing the present case based upon a finding that, under superior court rules, “June 3 [sic], 2009... was the last day for trial” (some capitalization omitted), and (2) the mandatory provisions of section 1382 take precedence over section 1050 and calendar management provisions of the California Rules of Court.
DISCUSSION
The Trial Court Erred By Dismissing the Present Case.
The district attorney essentially claims that on June 3, 2009, the trial court erroneously dismissed the present case (case No. NA078034). We agree.
1. The Prosecutor Was Entitled to a Two-Day Grace Period.
a. Applicable Law.
Section 1382, former subdivision (a)(2) (applicable in 2008, see fn. 2, ante)states, in relevant part, “(a) The court, unless good cause to the contrary is shown, shall order the action to be dismissed in the following cases: [¶]... [¶] (2) In a felony case, when a defendant is not brought to trial within 60 days of the defendant’s arraignment on an... information, .... However, an action shall not be dismissed under this paragraph if either of the following circumstances exist: [¶]... [¶] (A) The defendant enters a general waiver of the 60-day trial requirement.... If a general time waiver is not expressly entered, subparagraph (B) shall apply. [¶] (B) The defendant requests or consents to the setting of a trial date beyond the 60-day period. Whenever a case is set for trial beyond the 60-day period by request or consent, expressed or implied, of the defendant without a general waiver, the defendant shall be brought to trial on the date set for trial or within 10 days thereafter.” The 10 days is “10 days subsequent to the last date to which the defendant consented.” (Barsamyan v. Appellate Division of Superior Court (2008) 44 Cal.4th 960, 975 (Barsamyan).)
In Barsamyan, our Supreme Court observed, “Implicitly recognizing the importance to the prosecution of having the full 10 days available to it, various decisions have concluded that a court should not enter a dismissal pursuant to section 1382 for prosecutorial delay within the 10 days even in the absence of a showing of good cause for delay.” (Barsamyan, supra, 44 Cal.4th at pp. 978-979.)
In People v. Hernandez (1979) 97 Cal.App.3d 451, the court stated, “the Legislature has specifically determined in section 1382 that 10 days is a reasonable time in which to bring to trial a defendant who has consented to a postponement beyond the original 60-day period. A dismissal within the 10-day period would be contrary to legislative policy[.]” (Id. at p. 455.)
In Bailon v. Appellate Division of Superior Court (2002) 98 Cal.App.4th 1331 (Bailon), Friday, December 21, 2001, was day 7 of 10 (the tenth day being December 24, 2001), and the defendant purported to “stipulate” (id. at p. 1335) that December 26, 2001, would be the last day for trial. Accordingly, the court set the matter for trial on December 26, 2001, as day 10 of 10 (ibid.) without prosecutorial comment or objection.
In Bailon, the appellate court held the People could “ ‘waive their interests protected by the 10-day grace period and stipulate to a last day that is truly a last day for trial.’ ” (Bailon, supra, 98 Cal.App.4th at p. 1343.) Bailon observed, “If the prosecutor does not agree otherwise, the People are automatically entitled to a 10-day grace period beyond the continued trial date under section 1382. [¶] However, because the prosecutor may assess his or her readiness to proceed on the continued date and find that a shorter time is a ‘reasonable time’ under the circumstances..., we see nothing to prevent the prosecutor from agreeing to a date less than 10 days after the continued trial date. [Fn. omitted.]” (Id. at p. 1346.)
Bailon stated that, under the circumstances of that case, “the prosecutor’s silence... necessarily constitutes [nothing] less than acquiescence and implied consent to make [the date to which the court postponed the trial] the ‘last day’ to try Bailon, without benefit of the statutory grace period.” (Bailon, supra, 98 Cal.App.4that p. 1348.) Bailon later observed, “in a situation such as this in which the defendant and trial court both unequivocally specify and the prosecutor is clearly aware that a proposed continuance is to a particular date designated as the true ‘last day’ for trial (in contravention of the statutory default period), ... [a prosecutor must] take action to inform the court he does not waive the statutory grace period if he intends to stand on that right. Otherwise, the failure to object amounts to consent.” (Ibid.)
b. Application of the Law to This Case.
In the present case (case No. NA078034), Dinkins was arraigned on August 18, 2008, on the felony charges in the information, and 60 days thereafter was October 17, 2008. There is no dispute Dinkins was “not brought to trial within 60 days of the defendant’s arraignment on an... information” within the meaning of section 1382, former subdivision (a)(2).
There is no need to discuss the interim proceedings which occurred after October 17, 2008, but before June 1, 2009. On Monday, June 1, 2009, Aval, standing in for Roberts, indicated Roberts was requesting a postponement of the present case to June 2, 2009, because Roberts was handling a preliminary hearing. The master calendar court granted that request and continued the case to June 2, 2009. Accordingly, leaving aside the above interim proceedings, we note it is undisputed that on June 1, 2009, Dinkins, via Roberts’s above request, “request[ed] or consent[ed] to the setting of a trial date beyond the 60-day period” (i.e., beyond the period ending October 17, 2008) within the meaning of section 1382, former subdivision (a)(2)(B). Absent any other consideration, therefore, the present action could not be dismissed unless the prosecutor failed to bring Dinkins to trial on June 2, 2009, or within 10 days thereafter. (Bailon, supra, 98 Cal.App.4th at p. 1346; § 1382, former subd. (a)(2)(B).)
There is no dispute as to the validity of the continuance from June 1, 2009, to June 2, 2009.
However, on June 1, 2009, in the presence of the prosecutor, Aval expressly referred to the fact that June 1, 2009, was “ten of ten last day.” The master calendar court indicated in the prosecutor’s presence that it would grant Dinkins’s continuance motion to June 2, 2009, and “make it eight of ten days.” The prosecutor expressed no concern. The court later ordered that “Both cases go over to [June 2, 2009] as eight of the ten days.”
In light of the above, we conclude that the prosecutor, by failing to object on June 1, 2009, when the master calendar court set the present case for trial on June 2, 2009, as day 8 of 10, acquiesced and impliedly consented that Dinkins would have to be brought to trial pursuant to section 1382 on June 2, 2009, or within two days thereafter. (Cf. Bailon, supra, 98 Cal.App.4th at pp. 1343-1349.) The prosecutor waived her right to a full 10-day grace period subsequent to the last date (June 2, 2009) to which Dinkins consented, but did not waive the prosecutor’s right to a two-day grace period (consisting of June 3 and June 4, 2009).
Barsamyan concluded a court should not enter a dismissal pursuant to section 1382 for prosecutorial delay within the full 10-day grace period even absent good cause for the delay. (Barsamyan, supra, 44 Cal.4th at pp. 978-979.) Dinkins concedes “no showing of good cause is required for a continuance within the grace period[.]” Thus, we conclude that when there is a partial prosecutorial waiver a result of which the 10-day grace period provided by section 1382 has been reduced, a trial court should not enter a dismissal pursuant to that section for prosecutorial delay within that reduced grace period (such as the two-day grace period at issue here), even absent good cause for the delay.
In the present case, on June 3, 2009 (and thus within the two-day grace period), the prosecutor initially asked that the matter trail, and did not ask that the matter trail beyond the grace period. Nonetheless, the trial court essentially implied that, at an unspecified time, the superior court and the district attorney’s office had entered into a Bailon stipulation applicable to all felony cases and pursuant to which, as to cases on day 8 of 10, day 8 would be the last day for trial and there would be no subsequent grace period, with the result a court could lawfully dismiss the case pursuant to section 1382 on day 8 if the People were unable to proceed on that day.
We note that once the prosecutor indicated she wanted to trail and had a right to do so, the trial court referred to the alleged superior court policy and stipulation. The court also indicated “eight of ten” (italics added) was the “last day” and, therefore, a court “no longer” had to trail a case to “ten of ten.” These were clear references to the periods provided in section 1382. The court later indicated the prosecutor was unable to proceed and dismissed the case. The parties concede the trial court dismissed the case pursuant to section 1382 and the court’s minute order reflects the dismissal was pursuant to that section.
In sum, the trial court purported to dismiss the present case pursuant to section 1382, viewed in conjunction with the alleged stipulated policy. Moreover, absent the alleged stipulated policy, the trial court erred by dismissing the present case.
2. The Record Fails to Demonstrate the Existence of Any Policy That Day 8 of 10 Would Be the Last Day for Trial or That the District Attorney Agreed to Any Such Policy.
For the reasons discussed below, we do not believe the record demonstrates the existence of the alleged policy. At the outset, and notwithstanding Dinkins’s suggestion to the contrary, we note the trial court never said there was merely a master calendar court policy. The trial court indicated it thought “the policy” was that a case on day 8 of 10 would be treated as a last day case “by the superior court.” (Italics added.) The trial court thereby suggested the existence of a policy effective, at a minimum, in all superior courts in Los Angeles County. However, as shown below, the record fails to demonstrate such a policy existed.
On June 1, 2009, during the proceedings leading to the continuing of the present case to June 2, 2009, the master calendar court never mentioned any such superior court, or master calendar court, policy or that June 2, 2009, would be the last day for trial. On June 1, 2009, when the master calendar court indicated it would continue the case to June 2, 2009, the court stated it would “make it eight of ten daysso we will have some breathing room.” (Italics added.) We see no reason why the master calendar court would have made that statement if the alleged policy had existed or if June 2, 2009, was supposed to have been the last day for trial pursuant to that policy.
Similarly, the master calendar court later indicated it would “do [its] best” on June 2, 2009, to assign the case to a trial department, necessarily implying trial might occur after June 2, 2009. Nor did the master calendar court refer to the alleged policy or suggest June 2, 2009, was the last day for trial when that court trailed the matter to June 3, 2009, or when that court transferred the case to the trial court on that date.
On June 3, 2009, the trial court called the present case, acknowledged it was “nine of ten for trial today, ” and indicated the parties were ready to proceed on the suppression motion. The trial court did not then expressly refer to any alleged superior court, or master calendar court, policy; instead, it appeared the trial court was prepared to proceed with the matter. When the prosecutor requested that the case trail, the trial court denied it would grant any continuance or trail the matter, but did not then expressly refer to any alleged superior court, or master calendar court, policy.
No such alleged superior court, or master calendar court, policy is referred to in the Los Angeles Superior Court rules or the California Rules of Court. In addition, Dinkins has failed to provide an official citation to the alleged policy. We realize the prosecutor suggested the existence of a superior court policy when she stated “our office is not in agreement with that policy.” (Italics added.) However, that brief statement, denying agreement with the policy, provided no information concerning when the alleged policy became effective or its terms. The prosecutor provided no official citation to the alleged policy. In light of these facts and our previous discussion, including our discussion of the failure of the master calendar court to mention any such policy, we are unwilling to infer from the brief comment of the prosecutor the existence of a judicial policy potentially impacting all superior courts in Los Angeles County.
We conclude the record does not demonstrate the existence of the alleged superior court, or master calendar court, policy providing that day 8 of 10 was the last day for trial for purposes of section 1382, former subdivision (a)(2)(B).
Further, a superior court policy cannot, of course, lawfully conflict with a state statute. (Shipp v. Superior Court (1992) 5 Cal.App.4th 147, 151.) Accordingly, we have grave doubts a superior court could adopt a policy that day 8 of 10 was the last day for trial for purposes of section 1382 and, absent a stipulation by the People to such a policy, sua sponte dismiss cases pursuant to that section and policy where the People were unable to proceed on day 8 of 10.
However, the trial court referred, not merely to the alleged policy, but to an alleged stipulation of the district attorney’s office to the alleged policy. Nonetheless, we do not believe the record demonstrates the district attorney’s office agreed with the alleged policy. No one referred to such an agreement on June 1 or June 2, 2009, or on June 3, 2009, during the proceedings leading to the master calendar court’s assignment of the present case to the trial court. The prosecutor on June 3, 2009, expressly stated “our office is not in agreement with that policy.” (Italics added.) Nothing in the record demonstrates that, prior to June 3, 2009, the prosecutor was even aware of the issue of the alleged policy. The record contains no writing from the district attorney’s office reflecting the alleged agreement. We conclude the record does not demonstrate the district attorney’s office agreed at any time to the alleged policy.
In sum, we hold the trial court erred on June 3, 2009, by concluding the district attorney’s office agreed with a superior court, and/or master calendar court, policy providing that day 8 of 10 was the last day for trial for purposes of section 1382, and by dismissing the present case pursuant to that section and the alleged stipulated policy.
DISPOSITION
The order dismissing the action in the present case (case No. NA078034) is reversed, and the matter is remanded for further proceedings consistent with this opinion.
We concur: KLEIN, P. J., CROSKEY, J.