Opinion
E052145
01-10-2012
THE PEOPLE, Plaintiff and Respondent, v. ROY EDWARD JONES, Defendant and Appellant.
Wallin & Klarich and Stephen D. Klarich for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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. RIF145822)
OPINION
APPEAL from the Superior Court of Riverside County. Jean Pfeiffer Leonard, Judge. Affirmed.
Wallin & Klarich and Stephen D. Klarich for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant, Roy Jones, of two counts of committing lewd and lascivious acts on a minor and made a true finding that he engaged in substantial sexual conduct with the victim in connection with one of the counts (Pen. Code, §§ 288, subd. (a); 1203.066, subd. (a)(8)). He was sentenced to prison for three years and appeals, claiming the court below abused its discretion in granting the People's pre-trial motion to continue and the granting of that motion prejudiced him such that his convictions should be reversed. We reject his contentions and affirm.
The facts related to the crimes are irrelevant to this appeal.
ISSUES AND DISCUSSION
The complaint in this case was filed on September 11, 2008. From September 17, 2008, the date set for the arraignment, until April 14, 2009, aside from the arraignment on September 24, proceedings were either continued upon defendant's motion or defendant waived time. The preliminary hearing took place on April 14, 2009, and defendant was bound over for trial. An information was filed on April 27, 2009 and defendant was arraigned on it the following day. Trial was set for June 12, 2009. On June 10, the People filed a motion to trail trial within the existing time waivers and 10 day grace period to June 22, 2009. Two days later, defendant filed a motion to continue until at least July 8, 2009. The court found good cause for a continuance and granted the motion and defendant waived time for trial until August 5, 2009, plus 10 days. On August 5, the court found good cause and granted a stipulated motion to continue, with the stipulated last day to begin trial as September 24. In his subsequent motion for dismissal below, defendant asserted, without support in the record, that this was due to the fact that the prosecutor had not yet examined all the witness reports. In his opening brief, defendant, again, without support from the record, asserts that it was also due to the fact that the prosecutor was in trial in another case. On September 11, 2009, defendant filed a motion to continue to either late October or early November. Upon its finding of good cause, the trial court granted the motion and continued trial until October 15, 2009, and defendant waived time until that date. In his subsequent motion to dismiss below, defendant asserted, without support in the record, that he requested this continuance because the prosecutor was in trial in another case and still had not examined all the witness statements in this case. On October 15, 2009, trial was set for November 24, 2009, with the stipulated last day for trial to begin as December 4, 2009. In his opening brief, defendant asserts that the motion to continue which prompted this delay was granted because the prosecutor was in trial in another case, but the record does not support this. On November 24, 2009, the record states that the prosecutor was ill. The court found good cause and granted defendant's motion to continue, with a stipulated last day to begin trial on February 1, 2010. In his opening brief, defendant asserts that he announced ready that day, but the record does not support this. On January 22, 2010, trial was set for February 8, 2010 and was assigned to the Master Calendar Department, with the last day for trial to begin as February 18, 2010. In his subsequent motion to dismiss below, defendant asserted that the prosecutor was either ill or had a family emergency, but the record does not support this. In his opening brief, defendant asserts that a motion to continue (he does not specify who brought it) was granted, but the record does not support this, either. On February 8, 2010, the court granted the People's motion to trail trial. In his subsequent motion to dismiss below, defendant asserted that the prosecutor was in trial in another case and defense counsel announced ready on this date, neither of which is supported by the record. On February 16, 2010, defendant announced ready for trial, trial was trailed to February 18 because one of the attorneys (the record does not state which) was in trial on another case, and the stipulated last day for trial was February 18. In his subsequent motion to dismiss below and in his opening brief, defendant asserted that the prosecutor represented that he was about to complete a preliminary hearing in another case and would be ready to go to trial in this case on February 18, and defense counsel reluctantly agreed to that date to begin trial. On the 18th, the People's motion to continue, pursuant to Penal Code section 1050, subdivision (g), was granted and trial was set for February 25. During the hearing on defendant's subsequent motion to dismiss below, the court explained that it had granted the continuance because it had just assigned the prosecutor to another older case for trial. On February 25, 2010, defendant filed a motion to dismiss the case, asserting, inter alia, that defendant's right to a speedy trial had been denied by the granting of the continuance on February 18. On February 25, the court denied defendant's motion, concluding that Penal Code section 1050, subdivision (g) applied because it had just sent the prosecutor out to trial on another case. During argument on the motion, defense counsel had conceded that the other case on which the prosecutor had been sent out to trial was, like this one, a last day case. The trial court also concluded that defendant had failed to make a sufficient showing that his due process rights had been violated such that its ruling under Penal Code 1050, subdivision (g) was incorrect.
In his subsequent motion to dismiss, defendant alleged, contrary to the record, that the prosecutor was in trial in another case.
During argument on his subsequent motion to dismiss below, defense counsel asserted that he announced ready on February 8, 16 and 18.
The court set a new trial date for March 19, 2010, which was the date defendant had requested and stayed the matter so defendant could bring a writ in this court. On March 19, the court granted a stipulated motion to continue to April 6, 2010. On April 6, defendant's motion to continue until April 23 or another date was granted and trial was set for April 23. Two subsequent defense motions to continue were granted, with trial set for May 10. Trial was trailed until May 18, 2010, when defendant pled guilty to the charges. Almost two months later, defendant withdrew his plea, and, following the granting of another motion for a continuance brought by defendant, trial began on September 15, 2010.
Defendant here contends that the court below abused its discretion (People v. Engram (2010) 50 Cal.4th 1131, 1162, 1163 (Engram)) in denying his motion to dismiss. As defendant asserts, "In determining whether good cause exists to grant or deny a continuance, a court looks to the facts and circumstances of each case. [Citation.] The trial court, 'in determining whether good cause exists, as necessary to grant a continuance, must consider not only the benefit which the moving party anticipates, but also the . . . burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion.' [Citation.]"
Penal Code section 1050, subdivision (g) provides, "When deciding whether or not good cause for a continuance has been shown, the court shall consider the general convenience and prior commitments of all witnesses, including peace officers. Both the general convenience and prior commitments of each witness also shall be considered in selecting a continuance date if the motion is granted. The facts as to inconvenience or prior commitments may be offered by the witness or by a party to the case. [¶] (2) For purposes of this section, 'good cause' includes, but is not limited to, those cases involving . . . allegations that . . . a violation of . . . [Penal Code section 288(a)] . . . has occurred and the prosecuting attorney assigned to the case has another trial, preliminary hearing, or motion to suppress in progress in that court or another court. A continuance under this paragraph shall be limited to a maximum of 10 additional court days. [¶] (3) Only one continuance per case may be granted to the people under this subdivision for cases involving stalking, hate crimes, or cases handled under the Career Criminal Prosecution Program." (Pen Code, § 1050, subd. (g)(1)-(3), italics added.)
Defendant here reiterates a point he made below, i.e., that when the court assigned the prosecutor out to trial on another case on February 18, 2010, another deputy district attorney should have taken over the prosecution in this case and a continuance should not have been granted on that day. However, as the prosecutor explained during the hearing on defendant's motion to dismiss, " . . . [T]his [case] is not the [district attorney's] office's case, at least as far as [Penal Code section ]1050[, subdivision](g) is concerned. When you have a minor victim, as in this case, the cases are assigned vertically. And [Penal Code section] 1050[, subdivision] (g) makes no specification with regard to how many continuances shall be granted in a case with a minor victim. [Penal Code section] 1050[, subdivision] (g) . . . limits it to ten days for a continuance, but it doesn't specify how many continuances."
Defendant makes no assertion whatsoever that vertically assigning cases in which the victims are minors is not a sufficient reason for a continuance under Penal Code section 1050, subdivision (g). Rather, he inaccurately views the problem here as one of a scarcity of government resources, such as a shortage of courtrooms or judges, and cites cases holding that such a shortage does not constitute good cause for a continuance beyond the 60-day period provided by Penal Code section 1382. However, the two are not related, as is apparent from the observations made by the California Supreme Court as reiterated below. Moreover, not once in his moving papers or at the hearing on the motion to dismiss did defendant mention Penal Code section 1382, and thus waived that basis. (People v. Wilson (1963) 60 Cal.2d 139, 147.) Nor did he assert that his constitutional rights had been violated due to the delay, thus waiving that assertion. (United States v. Olano (1993) 507 U.S. 725, 731) His motion was based on his misreading of subsection (2) of Penal Code 1050, subdivision (g) and his mistaken belief, based on that misreading, that since another trial, preliminary hearing or motion to suppress was not in progress in the other case the prosecutor was assigned out on for trial, a continuance under Penal Code 1050, subdivision (g) was improper.
That section provides, as is pertinent here, that unless good cause to the contrary is shown, the court shall order a case dismissed if defendant is not brought to trial within 60 days of arraignment, unless defendant enters a general waiver of the 60-day requirement or requests or consents to the setting of trial beyond the 60-day period. In the case of a defendant waiving the 60-day requirement, trial must begin within 60 days of defendant withdrawing the waiver. In the case of a defendant requesting or consenting to the setting of a trial date beyond the 60-day period, trial must begin on the date set for trial or within 10 days thereafter.
"' . . . [A] number of factors are relevant to a determination of good cause: (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 of 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, "aplying principles of common sense to the totality of the circumstances . . . ." [Citations.] The cases recognize that, as a general matter, a trial court "has broad discretion to determine whether good cause exists to grant a continuance of the trial" [citation], and that, in reviewing a trial court's good-cause determination, an appellate court applies an "abuse of discretion" standard. [Citations.]' [Citation.] [¶] In [People v.] Sutton[(2010)] 48 Cal. 4th 533 [(Sutton)], the delay in bringing the defendant's case to trial was attributable to the unavailability of counsel for one of the defendants, resulting from that counsel's ongoing engagement in another client's trial that had taken longer than expected. In the present case, the basis for the delay was not the unavailability of counsel but rather the unavailability of a judge or courtroom to try defendant's case . . . . [¶] . . . Although the court in [People v.] Johnson [(1980) 26 Cal. 3d 557, 571-572] recognized that the lack of a sufficient number of judges or courtrooms might constitute good cause to justify the delay of trial under section 1382 in 'exceptional circumstances,' the decision made clear that delay arising out of chronic congestion of a court's trial docket cannot be excused. [Citation.] [¶] . . . [Here,] the trial court properly could find that the congested criminal caseload represented a chronic condition rather than an exceptional circumstance, and further that the lack of available courtrooms and judges was attributable to the Legislature's failure to provide a number of judges and courtrooms sufficient to meet the rapidly growing population [of the c]ounty. Under these circumstances, . . . the trial court . . . did not abuse its discretion in determining that the unavailability of a judge or courtroom to bring defendant's case to trial within the statutory period was fairly . . . attributable to the fault or neglect of the state and accordingly did not constitute good cause to delay the trial under section 1382." (Engram, supra, 50 Cal.4th at pp. 1163-1165, fns. omitted.)
In contrast, in Sutton, the California Supreme Court concluded that the inability of counsel for the codefendant to be present at a joint trial with defendant because the former was in trial on another case constituted good cause for continuing the joint trial beyond the 60-day period under Penal Code section 1382. (Sutton, supra, 48 Cal.4th at p. 562.) The High Court added, "Further, because . . . the joint trial ultimately commenced only six days after the 60-day period, the duration of the delay in this case clearly was reasonable. Finally, Sutton makes no claim that the short delay in the commencement of trial adversely affected his ability to defend the charges against him." (Id. at p. 562.)
Here, defendant wanted to go to trial on February 18, but by February 25, he asked for and was granted a stay of proceedings so he could bring a writ before this court and, at the next court date, stipulated to a continuance, and, thereafter, agreed to an almost two month delay of proceedings, then more delay surrounding the withdrawal of his guilty pleas. Additionally, he never ever asserted that this particular delay (February 18 to February 25) adversely affected his ability to defend himself, particularly when considered with the more than 14 months of previous delays he had either requested or to which he consented.
The only thing that defendant asserted concerning any negative impact of delay was in his moving papers and it had nothing to do with the delay of which he was complaining. He stated that since August of 2009, he "had six witnesses literally on call to me each time we had to make a further court appearance. . . . [I]n September or October . . . the Court specifically ordered four witnesses [(actually, it was three, in August)] that were in the courtroom back for the next court date. [¶] This has posed a great inconvenience for the subsequent seven or eight court appearances in so much [sic] that one of them is a student, one now resides out of the area, and one has a work schedule. [¶] In addition, both [defendant] and his wife . . . are working and they have had to take a full day off from their places of employment each time they had to come to court . . . . . . . I have had to schedule and reschedule several other matters since I have blocked off at least five to seven court dates for this trial . . . ." What defense counsel below neglected to mention in his moving papers, but he admitted at the hearing on the motion, was that he consented to all the continuances up until February 18, 2010. Moreover, whatever inconvenience defense witnesses suffer is not the same as a delay that adversely affects the defendant's ability to defend himself.
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For obvious reasons, this case is also unlike Cunningham v. Municipal Court (Los Angeles) (1976) 62 Cal.App.3d 153, which defendant cites, in which the prosecutor failed to subpoena the arresting officer, even though he knew the officer would still be on vacation the last day of the statutory period provided by Penal Code section 1382. Contrary to defendant's assertion that here, similar to Cunningham, the problem was the prosecutor's failure "to manage his calendar," it was the judge, and not the prosecutor, who made the decision to send the latter to trial on the other case, thus making him unavailable for this one.
Not only do we disagree with defendant that the court below abused its discretion in granting the seven day continuance under Penal Code section 1050, subdivision (g), his assertion that he was prejudiced by the delay, which is the sine qua non for reversal of his convictions, is non-meritorious. Defendant maintains that "he and his witnesses had to endure multiple continuances that disrupted their lives and required them to take multiple days off." Apart from the apparent appearance of three of defendant's witnesses, including his wife, on August 5, 2009, the record does not support his assertion that his witnesses were otherwise inconvenienced. Moreover, on August 5, 2009, defendant stipulated to a continuance and his three witnesses were ordered to return on September 14. The record does not indicate that they did so—what it does show is that on September 14, defendant requested another continuance. Defendant cites no authority holding that his repeated appearances in court, especially when most were occasioned by his own requests for continuances or waivers of time, demonstrate prejudice.
Defendant also asserts that he was prejudiced by the absence of a particular witness who, at the time of trial, experienced car trouble and therefore could not attend. He cites no portion of the record in support of his claim that the witness had car trouble. Defendant's four witnesses testified over a period of less than an hour during the morning of the last day evidence was presented, which was September 21, 2010. Defense counsel noted that his fifth witness had "some situation with her children" but would be there after lunch. After lunch, the examination of the fourth defense witness was completed and defense counsel noted that his fifth witness had not appeared. After a mid-afternoon recess, during which defense counsel sent people out to locate the witness, the court said it would give counsel more time to locate her, although it noted that counsel had failed to subpoena her. The court and counsel then went over the jury instructions, which was interrupted by news that someone had apparently gone to the home of the fifth witness and discovered that she was not there and she could not be located. The defense rested and the trial court, without objection from the defense, closed the case to evidence. The record does not disclose why this witness did not appear and testify for defendant. Defendant cannot possibly demonstrate that this witness would have been willing to and would have shown up had this case gone to trial on February 18, 2010 rather than on September 21, 2010. Therefore, defendant does not demonstrate that he was prejudiced by the seven day delay in February.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P.J.
We concur:
KING
J.
CODRINGTON
J.