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People v. Hender

California Court of Appeals, Third District, Shasta
Apr 30, 2009
No. C057383 (Cal. Ct. App. Apr. 30, 2009)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. SEAN ERIC HENDER, Defendant and Appellant. C057383 California Court of Appeal, Third District, Shasta April 30, 2009

NOT TO BE PUBLISHED

Super. Ct. No. 07F4193

BLEASE , Acting P. J.

Defendant Sean Eric Hender was convicted by jury of misdemeanor spousal battery, and sentenced to time served. Defendant appeals, claiming that his conviction must be reversed because he was denied his statutory right to a speedy trial. We disagree and affirm.

PROCEDURAL BACKGROUND

We dispense with a recitation of the underlying facts as they are unnecessary to the resolution of this appeal. The chronology relevant to defendant’s contention that he was denied a speedy trial follows.

On June 1, 2007, the Shasta County District Attorney’s office filed an information charging defendant with felony corporal injury to a spouse (Pen. Code, § 273.5, subd. (a)) and misdemeanor cutting a utility line (§ 591).

All further statutory references are to the Penal Code unless otherwise indicated.

On August 15, 2007, following a four-day jury trial, the jury deadlocked and a mistrial was declared. The matter was continued to August 20, 2007, for resetting a trial date and other proceedings.

On August 20, 2007, the trial court set the new trial date for October 16, 2007 - 61 days following the declaration of mistrial. While defendant’s attorney stated “no time waiver” prior to the setting of the new trial date, he did not object to the setting of a date outside the 60-day time period. It appears that the court intended the trial date to be set for the 60th day, but because the clerk miscalculated the time period, all parties believed the 60th day to be October 16, 2007.

As the 60th day actually fell on Sunday, October 14, 2007, the 60-day time period was extended to Monday, October 15, 2007 (See Cal. Rules of Court, rule 1.10(b) [“Unless otherwise provided by law, if the last day for the performance of any act that is required by these rules to be performed within a specific period of time falls on a Saturday, Sunday, or other legal holiday, the period is extended to and includes the next day that is not a holiday.”].)

In response to questions by both the prosecutor and defense counsel asking the clerk what the 60th day would be, the clerk responded: “We’d set it for October 16th, unless there’s a reason to set it shorter than that.” As no one objected to the clerk’s calculation, trial was set for that date.

On October 15, 2007, a trial readiness conference was held. At the beginning of the conference, the court explained that defense counsel had informed the court that morning about a potential speedy trial problem. Indicating that it agreed that the 60-day time period would expire at the end of the day, the court entertained argument on the issue of whether defendant had waived his speedy trial right. The People argued that defendant had impliedly waived his right to a speedy trial by failing to object to the setting of a trial date outside the 60-day time frame. Defendant argued that there was no implied waiver because he “demand[ed] that a date be set without a time waiver” and that it is an “unreasonable standard” to require a defense attorney to immediately calculate the 60 days to make sure that the date the court selects does not fall outside the time period. Defendant then indicated that he would be filing a motion to dismiss the following morning if the trial had not commenced by the end of the day.

Defense counsel apparently informed the prosecutor of the speedy trial issue “as soon as it came to [his] attention,” on the afternoon of Friday, October 12, 2007.

The trial court agreed with the People and issued a tentative ruling on the anticipated motion to dismiss: “I’m going to rule that, without prejudice, the... time period was waived by implication and that the defendant did not make a motion under section 1382. And I’m also going to make a finding that he’s... not in any way prejudiced by waiting from now until tomorrow morning.” As the court explained its ruling: “[O]n the face of [section] 1382, and looking at the transcript, I think there’s been an implied waiver. I don’t agree with [defense counsel] that he didn’t have any duty to check that out until two or three days before the trial; I think everybody had a duty to do that. [¶] Obviously, there was a miscalculation on the part of the clerk[.]... Nobody called that to her attention, there was a chance for both parties to call that to her attention, and I think both parties had a[n] obligation to do so. [¶] Furthermore, [section] 1382 expressly provides for a remedy to the defendant... even after that occurred, even if there was an implied waiver, he still had a right to basically back out and the code section tells us exactly how he could do it....[I]f the defendant for some reason, let’s say the next day, figured out it was the wrong time, he could have given a ten-day notice as required by the code section and asked to vacate the date and set it for an earlier date. And he could have done that at any time during this whole period of... about 60 days.”

The court also noted that it was 2:00 in the afternoon, and that it would be “totally futile” to try to select a jury that afternoon because Shasta County does not have jurors available on call and the court would have to “go to the post office and co-opt people that happen to be going in there to get their mail and people that happen to be straying innocently around the courthouse” in order to find prospective jurors.

On October 16, 2007, defendant made an oral motion to dismiss for failure to timely prosecute. After entertaining further argument on the motion, the trial court again denied the motion for the reasons outlined the day before.

DISCUSSION

Both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution guarantee a speedy trial to persons accused of crime. (People v. Harrison (2005) 35 Cal.4th 208, 225.) “The California Legislature has ‘re-expressed and amplified’ these fundamental guarantees by various statutory enactments, including Penal Code section 1382.” (Ibid., quoting Townsend v. Superior Court (1975) 15 Cal.3d 774, 779.)

Section 1382, subdivision (a)(2), provides in relevant part that in a felony case where “the cause is to be tried again following a mistrial,” and where the defendant is not brought to trial “within 60 days after the mistrial has been declared,” the court, “unless good cause to the contrary is shown, shall order the action to be dismissed....” However, subdivision (a)(2) further provides that “an action shall not be dismissed under this paragraph if either of the following circumstances exist: [¶]... [¶] (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.” (§ 1382, subd. (a)(2)(B).)

As our Supreme Court explained in People v. Wilson (1963) 60 Cal.2d 139, 146: “It is settled that ‘the constitutional right to a speedy trial and the [hereinabove quoted]... statutory requirements may be waived.’ (People v. Tahtinen (1958) 50 Cal.2d 127, 131 [].) A defendant’s consent that his trial be set for a date beyond the limit prescribed ‘is equivalent to a postponement upon his application’ (People v. Taylor (1959) 52 Cal.2d 91, 93[]) and hence constitutes a waiver of the right; and consent will be presumed if the defendant fails to take the necessary procedural steps of making timely objection to such delay and thereafter moving for dismissal. [Citation.]” Moreover, “‘[w]hen a defendant fails to object at the time a cause is set for trial beyond the statutory period, consent is presumed.’ [Citations.]” (Wilson, supra, 60 Cal.2d at p. 146; see also McCullar v. Superior Court (1968) 264 Cal.App.2d 1, 4-5.)

In this case, we must presume that defendant consented to the setting of a trial date outside the 60-day period as he did not object to the trial date at the time it was set. Nor did he make a “timely objection” under any reasonable standard. Not until the morning of the 60th day did he bring the matter to the court’s attention and demand that the trial begin by the end of the day. Under section 1382, because defendant “consent[ed] to the setting of a trial date beyond the 60-day period,” the People were required to bring him to trial on the date set, “or within 10 days thereafter.” (§ 1382, subd. (a)(2)(B).) The People brought defendant to trial on the agreed upon trial date. As the trial court explained to defendant in denying his motion, having agreed to a trial date outside the 60-day period, defendant’s remedy under section 1382 was to file a noticed motion to “vacate the date set for trial and to set an earlier trial date” and demonstrate “good cause for granting that motion.” (§ 1382, subd. (a)(2)(B).) Defendant made no such motion.

In sum, we find that by agreeing to a trial date on the 61st day after the mistrial was declared, defendant waived his right to a trial within 60 days of such declaration of mistrial. Nor has defendant demonstrated that he suffered any prejudice from a one-day delay.

DISPOSITION

The judgment is affirmed.

We concur: RAYE , J., ROBIE , J.


Summaries of

People v. Hender

California Court of Appeals, Third District, Shasta
Apr 30, 2009
No. C057383 (Cal. Ct. App. Apr. 30, 2009)
Case details for

People v. Hender

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. SEAN ERIC HENDER, Defendant and…

Court:California Court of Appeals, Third District, Shasta

Date published: Apr 30, 2009

Citations

No. C057383 (Cal. Ct. App. Apr. 30, 2009)