Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Solano County Super. Ct. No. FCR239864
Kline, P.J.
Penal Code section 1381 (section 1381), which is “ ‘supplementary to and a construction of’ the state constitutional speedy trial guarantee” (People v. Martinez (2000) 22 Cal.4th 750, 766; Cal. Const., art. I, § 15; see also § 1050), provides that any person who, at the time of entry upon the term of imprisonment for a California felony conviction, has pending any criminal proceeding in which he or she remains to be tried or sentenced, must be brought to trial or sentenced within 90 days of a request to do so. The chief purpose of requiring a speedy trial for a defendant serving a term of imprisonment is to permit him or her to obtain the benefit of concurrent sentencing by accelerating the resolution of pending charges as well as charges arising while in a prison status so that such charges would not hang over him and await resolution upon his release. (People v. Boggs (1985) 166 Cal.App.3d 851, 855 (Boggs); People v. Broughton (2003) 107 Cal.App.4th 307, 319.)
All statutory references are to the Penal Code unless otherwise indicated.
As material to this case, section 1381 provides: “Whenever a defendant has been convicted, in any court of this state, of the commission of a felony . . . and has been sentenced to and has entered upon a term of imprisonment . . . and at the time of the entry upon the term of imprisonment . . . there is pending, in any court of this state, any other indictment, information, complaint, or any criminal proceeding wherein the defendant remains to be sentenced, the district attorney of the county in which the matters are pending shall bring the defendant to trial or for sentencing within 90 days after the person shall have delivered to said district attorney written notice of the place of his or her imprisonment . . . and his or her desire to be brought to trial or for sentencing unless a continuance beyond the 90 days is requested or consented to by the person, in open court, and the request or consent entered upon the minutes of the court . . . . In the event that the defendant is not brought to trial or for sentencing within the 90 days the court in which the charge or sentencing is pending shall, on motion or suggestion of the district attorney, or of the defendant . . . or his or her counsel . . . or on its own motion, dismiss the action.”
Petitioner, Iqbal Randhawa, a member of the class of imprisoned persons benefitted by section 1381, demanded a speedy trial pursuant to that statute. After the trial court continued trial to a date beyond the 90-day period, he moved to dismiss the charges against him. The court denied the motion. Petitioner now asks us to issue an alternative writ of prohibition/mandate restraining respondent court from taking any further proceedings in this criminal action against him, and requiring dismissal of said action, due to the fact that, for reasons entirely unattributable to him, he was denied the right to a speedy trial mandated by section 1381.
We shall grant the writ.
BACKGROUND
On February 13, 2007, the Solano County District Attorney filed an 11-count felony complaint against petitioner and his son, Manjinder Randhawa (Manjinder), both of whom are allegedly “seller[s] of travel” (Bus. & Prof. Code, § 17550.1), charging them with grand theft of customers of petitioner’s travel agency (in amounts ranging from $1,140 to $5,040) (§ 487, subd. (a)); obtaining money, labor or property by false pretenses (§ 532, subd. (a)); uttering or delivering checks on insufficient funds with intent to defraud (§ 476a, subd. (a)); failure to return moneys (Bus. & Prof. Code, § 17550.14, subd. (a)); and trust account violation (Bus. & Prof. Code, § 17550.15, subd. (b)). Petitioner was charged under all eleven counts and Manjinder jointly charged under six of them.
The complaint was amended on May 21, 2007, by eliminating the counts charging obtaining money by false pretenses and uttering checks on insufficient funds and adding new counts charging one or more of the offenses charged in the original complaint and also a single count of identity theft (§ 530.5, subd. (a)) against petitioner. All but five of the 23 counts set forth in the amended complaint were against petitioner only. Of those five, two jointly charged petitioner and Manjinder with grand theft; one count charged grand theft against Manjinder alone; and a two counts jointly charged petitioner and Manjinder with failure to return moneys and for trust account violation.
On August 24, 2007, the district attorney filed a second amended felony complaint to add conspiracy charges against both petitioner and Manjinder.
On September 4, 2007, about two weeks after petitioner had waived his right to a preliminary hearing, the district attorney filed a 25-count information against him, alleging 19 counts of grand theft, one count of identity theft, one count of failure to return moneys, one count of trust account violation, and three counts of conspiracy (§ 182, subd. (a)(1)) (to commit grand theft, failure to return moneys, and trust account violation). On September 11, 2007, petitioner was arraigned on the information.
On February 13, 2008, one week after Manjinder had been held to answer to the charges alleged against him in the second amended complaint, the district attorney filed a six-count information against Manjinder, charging him with single counts of grand theft, failure to return moneys and trust account violation, and three counts of conspiracy (to commit, respectively, grand theft, failure to return moneys, and trust account violation).
On May 13, 2008, petitioner—who was at that time imprisoned in a California Correctional Facility on a conviction of grand theft with a tentative release date of March 11, 2009—served on the district attorney a section 1381 demand for a speedy trial; that is, a trial commencing no later than 90 days, which period would expire on August 11, 2008.
On June 30, 2008, Manjinder filed a written “Objection to Joint Trial” with petitioner. Manjinder pointed out that he was not moving to sever because, although a joint trial for petitioner and Manjinder was scheduled, the charges separately alleged against petitioner and Manjinder in different charging documents filed at different times and with different numbers had never been joined or consolidated for trial at the request of the district attorney or by the court. Manjinder also objected to a joint trial because: “(1) He will be prejudiced by the jury associating him with a codefendant who is charged with greater criminality; [¶] (2) He will be prejudiced by a weak case against him being tried with a strong case against [petitioner]; [¶] (3) He will be prejudiced by the jury’s confusion over the multitude of counts; [and] [¶] (4) Separate trials will allow Manjinder to call [petitioner] to the stand to testify in Manjinder’s defense.”
In opposing Manjinder’s request for separate trials, the district attorney disputed his claim that the prosecution had never moved for a joint trial of the charges separately alleged against him and petitioner in different informations and that joinder had never been ordered by the court. According to the district attorney, a preliminary hearing on the charges against Manjinder was held on February 5 and 6, 2008, an information alleging those six counts against Manjinder was filed on February 13, and “[o]n March 17, 2008, the Court granted the People’s motion to rejoin the cases for jury trial pursuant to Penal Code section 1098.” The trial court agreed.
At an August 5, 2008 hearing on petitioner’s motion to dismiss the charges against him due to denial of his right to a speedy trial under section 1381, the trial judge stated that “although it’s not stated in the minute order, I have reviewed the transcript [of the hearing held on March 17, 2008], the court reporter’s transcript, and the Court did at that time grant the People’s motion to rejoin the two matters. Again, it’s not in the minute order, but it definitely is in the transcript. There’s no evidence in the transcript of opposition to that motion at that time. Although, having said that, I will point out that pretty early counsel for Manjinder brought to the Court’s attention that there would probably be a motion to sever, but I don’t think that came up on March 17. What did happen on March 17 is that Manjinder said he needs six more weeks to hire counsel. So he did not have counsel, at that time, of record.”
In denying petitioner’s motion to dismiss under section 1381 at the August 5, 2008 hearing, the trial court explained its ruling as follows. First, the court identified the important dates after March 17, 2008 when the cases were joined: On May 13, petitioner filed his section 1381 demand (making August 11th, 90 days later, the last date on which trial would ordinarily have to commence); on May 27, Manjinder requested further time for setting trial so he could obtain counsel, and the case was continued to June 17 for that purpose; on June 12, petitioner withdrew his time waiver and the matter was set over to June 23 for a readiness conference; on June 17, after he had obtained counsel, Manjinder announces that he will file a motion to sever and wanted another week in which to do that; on June 23, trial was set for November 19 “due to Manjinder’s counsel’s unavailability before then, and [petitioner] did properly object at that time to that late setting”; on July 29 Manjinder’s objection to a joint trial with petitioner “was sustained after a hearing.”
At the July 29 hearing, the trial court explained that severance was required for three reasons: First, “due to the sheer bulk of the evidence against [petitioner], the obviously strong case against [petitioner], and the correspondingly weaker case against Manjinder.” Second, “jury confusion could be quite extreme and to Mr. Manjinder Randhawa’s prejudice.” Third, “it’s likely that Manjinder’s due process rights would be prejudiced by his not being able to call [petitioner].” “For all of those three reasons,” the court stated, “I believe that Manjinder will not have a reasonable likelihood of a fair trial if the trials are conducted together. Accordingly, they will be severed.”
The trial court pointed out that the two cases had been “joined” on March 17, prior to May 13, the date petitioner filed his section 1381 demand, and Manjinder did not obtain counsel until June 17, when the court was informed Manjinder would move to sever. The court found “that during that period of time it was not possible to prosecute the case because of the joinder and that during that period from May 13 to June 17 the 90-day period is tolled for a total of 35 days. [¶] On June 17 when Manjinder has counsel but his counsel says that they want to file a motion to sever, essentially nothing happened until June 23rd. I think that period of time the 90 days were running, but then on June 23rd the trial was set for November 19, again because of Manjinder’s counsel’s unavailability at any time before then. It was once again impossible to proceed against [petitioner], and it appears that during that period of time, June 23rd to July 29, another 36 days, the statute was tolled again. [¶] So we have tolling, as far as I can tell, for a grand total of 71 days. This is, again, not a good cause exception because there isn’t one, but it’s a tolling which is authorized by common law as I understand it. [¶] So, it appears that with the tolling of 71 days, the last date of trial actually would be October 21 at this time. You have the 90 days, plus the 71 days tolling, adding up to October 21 being the last date. [¶] So based on all of that, because I find the 1381 time period was tolled and we’re still well within the time for setting trial, as I understand the law, the motion to dismiss is denied.”
DISCUSSION
The trial court based the foregoing reasoning on Boggs, supra, 166 Cal.App.3d 851, In re Shute (1976) 58 Cal.App.3d 543 (Shute), and People v. Manina (1975) 45 Cal.App.3d 896 (Manina), the same cases principally relied upon here by the Attorney General.
Boggs, supra, 166 Cal.App.3d 851, does not support the tolling found by the trial court here. Shortly after the defendant in Boggs had been sentenced to state prison he sent notices under section 1381 to the district attorneys of two separate counties in which charges were pending against him. Shortly thereafter he was transferred to one of the counties, and so was unavailable when the other county’s superior court issued its order to produce. After the completion of proceedings in the first county, the defendant was returned to state prison, and was transferred to the second county 112 days after its receipt of the defendant’s section 1381 demand. Trial on the pending charges was set for a date more than 90 days after the defendant was available for transfer to the second county. The trial court granted the defendant’s motion to dismiss for lack of a speedy trial under section 1381. (Boggs, at pp. 854-855.) The Court of Appeal reversed, holding that the 90-day period was tolled when the defendant was unavailable for trial in the second county by virtue of being detained in trial proceedings in the first county. “A reading of section 1381 makes obvious the fact that the drafters of the section did not contemplate a situation in which a defendant is made unavailable for prosecution within 90 days by reason of simultaneous demands for speedy trial in different jurisdictions. Logic demands the 90-day period under section 1381 be tolled when defendant has been made unavailable for trial in one county by virtue of being detained in trial proceedings in another. [Citations.]” (Id. at pp 855-856, fn. omitted.) The logic of Boggs does not apply to the present case, because the record does not show petitioner was ever unavailable for trial in the Solano County Superior Court on the charges set forth in the information.
Nor is Shute, supra, 58 Cal.App.3d 543 apposite. To begin with, Shute does not involve section 1381 but section 1381.5, relating to defendants imprisoned in federal correctional institutions, which states that the district attorney must bring the defendant to trial or sentencing within the demanded 90 days only where federal authorities assent to release of the defendant for trial or sentencing within that period. (Shute, at pp. 547-548.) Secondly, there was considerable doubt whether the defendant in Shute had actually filed a demand for a speedy trial on the district attorney of Orange County. (Id. at pp. 549-550.) Finally, and most importantly, the defendant in Shute could not have been brought to Orange County within the 90-day period even assuming federal authorities assented to his release and he had made a section 1381.5 request on the date he claimed, because during 32 days of that 90-day period “Shute was in San Francisco for the handling of his criminal charge there” (id. at p. 551), and it was for this reason the Shute court concluded that “there is no impropriety or mishandling by the People or the court of Shute’s case under Penal Code section 1381.5.” (Ibid.) As noted, our petitioner (who was not confined in a federal correctional institution) was never subject to court proceedings in another county or otherwise unavailable for trial in the Solano County Superior Court within 90 days of the filing of his section 1381 request for a speedy trial.
Manina, supra, 45 Cal.App.3d 896, the chief case relied upon by the People below and in this court, is also of no help to them. Manina filed his section 1381 notice when, while he was serving a term of imprisonment in a California correctional facility, felony charges were filed against him in Alameda County. (Manina, at p. 900.) He was finally arraigned in the superior court 90 or 92 days after delivery of his section 1381 notice of his desire to be tried. At that time he moved for dismissal for the prosecution’s failure to timely bring him to trial. The motion was granted by the superior court and the action was dismissed. Manina was thereupon recharged with the same offenses, on which he was tried and convicted. (Id. at p. 901.) Manina appealed from the judgment, claiming he was denied a speedy trial, due process of law and equal protection of the law on account of the earlier 90-day trial delay, and the refilling of the same charges pursuant to section 1387. The Court of Appeal affirmed the judgment. (Manina, at p. 902.)
Section 1387 permits the prosecutor to refile the same charge, however “the defendant may thereafter urge that he has been denied a speedy trial on the charge. The burden then rests upon the prosecutor to establish good cause for the delay. Upon his failure to do so the action must again, and finally, be dismissed. [Citations.]” (Manina, supra, 45 Cal.App.3d at p. 900.)
The Manina court explained that “[a]n express requirement for the operation of Penal Code section 1381, q.v., is that the defendant shall ‘desire to be brought to trial.’ Clearly implied is the condition that he shall reasonably cooperate with, and not obstruct, the prosecutor’s efforts to bring on the trial within the statutory period. The statute is designed to implement the Constitution (Barker v. Municipal Court [(1966)] 64 Cal.2d 806, 812; People v. Wilson [(1963)] 60 Cal.2d 139, 145); it is not to be invoked by a defendant for the purpose of starting the statutory time running, and then by one means or another forestalling a trial within that period, thus to attain immunity from further prosecution. It is for this and perhaps other reasons, that in determining good cause for delay of a trial beyond the statutory period ‘only that “prejudice” for which [defendant] was not responsible’ will be considered. (Bellizzi v. Superior Court [(1974)] 12 Cal.3d 33, 38.)” (Manina, supra, 45 Cal.App.3d at p. 900)
Without giving up the alternative argument that there is no good cause for the delay in his case, petitioner initially rests on the fact that section 1381 does not contain a good cause exception, so that the People could not avoid dismissal even if they could show good cause for delay in bringing him to trial within the 90-day period of section 1381. In Crockett v. Superior Court (1975) 14 Cal.3d 433, 440, the Supreme Court stated that “[u]nlike section 1382, sections 1381 and 1381.5 do not provide that the prosecution may avoid dismissal for failure to bring an accused to trial within the statutory period if good cause for the delay can be demonstrated.” On the other hand, as noted in Smith v. Superior Court (1984) 159 Cal.App.3d 1172, the Supreme Court was not in Crockett “considering whether a good cause exception might be implicit in the legislation and, in fact, noted that there did not seem to be any reasonable explanation for the failure of the Legislature to express such an exception. ([Crockett v. Superior Court, ] at p. 440, fn. 7.)” (Smith v. Superior Court, at p. 1176, fn. 4) As the Smith court went on to note, the Manina court, in a case decided just prior to Crockett, “held that good cause excuses delay under section 1381 where the defendant, after starting the 90-day period, forestalls the trial by his own actions.” (Smith v. Superior Court, at p. 1176, fn. 4, italics added.) Without deciding the matter, we shall assume Manina correctly decided that a good cause exception is implicit in section 1381 with respect to delays attributable solely to the defendant.
There was no doubt Manina was himself responsible for any prejudice he suffered as a result of the very short delay in his trial. As stated by the court, “[t]he record establishes beyond any doubt that Manina’s municipal court preliminary examination was delayed almost two weeks because of the absence of his already retained and paid ‘private counsel,’ who never did appear in the case. It further shows that Manina’s arraignment in the superior court on the charges was delayed because of his real, or feigned, suicide attempt in the county jail resulting in his return to prison for ‘medical safety.’ ” (Manina, supra, 45 Cal.App.3d at pp. 900-901.)
The circumstances of the present case bear no resemblance to those of Manina, because the delay in bringing this case to trial cannot in any way be attributed to petitioner. He and defense counsel were available and prepared for trial during the entire 90 days and never wavered in their demand that trial take place within that statutory period.
According to the Attorney General, “the rationale set out in Manina, Shute, and Boggs is applicable in this situation. The need for delay and good cause justifying the delay were not caused by the prosecution or the court, but by codefendant’s counsel. Accordingly, the 90-day period set out in section 1381 was appropriately tolled during the pendency of codefendant’s good cause for continuing trial.” (Italics added.) We cannot agree.
As we have explained, the delay in Manina, Shute, and Boggs was in some fashion entirely attributable to the defendant or his circumstances. The Attorney General cites no case in which a good cause exception to section 1381 was based upon the conduct of or circumstances relating to a defendant other than the one who files a section 1381 request for a speedy trial and the two defendants are to be tried in a consolidated proceeding. As has been stated, “[u]nlike the 60-day requirement of Penal Code section 1382, failure to prosecute within 90 days under Penal Code section 1381 cannot be excused by a showing of good cause for the delay (except where the accused causes the delay).” (People v. Cave (1978) 81 Cal.App.3d 957, 964, italics added, citing Manina, supra, 45 Cal.App.3d at p. 901.) Moreover, the Attorney General ignores the fact that the delay granted by the court at the July 29, 2008 hearing (after Manjinder’s objection to a joint trial was sustained) was at the request of the district attorney, who represented that otherwise she was “not going to be able to get my witnesses done.”
The Attorney General also argues that a good cause exception to section 1381 may also be found under the good cause provision of section 1050.1. The argument is untenable.
Section 1050.1, provides as follows: “In any case in which two or more defendants are jointly charged in the same complaint, indictment, or information, and the court or magistrate, for good cause shown, continues the arraignment, preliminary hearing, or trial of one or more defendants, the continuance shall, upon motion of the prosecuting attorney, constitute good cause to continue the remaining defendants’ cases so as to maintain joinder. The court or magistrate shall not cause jointly charged cases to be severed due to the unavailability or unpreparedness of one or more defendants unless it appears to the court or magistrate that it will be impossible for all defendants to be available and prepared within a reasonable period of time.”
Section 1050.1 is inapplicable to this case. To begin with, petitioner and Manjinder were not at any material time “jointly charged in the same complaint, indictment, or information” as required by the statute. As earlier noted, the district attorney filed the information against petitioner only on September 4, 2007, and it thereupon became the relevant accusatory pleading as to him. More than five months later, on February 13, 2008, a separate information was filed against Manjinder. Thus, when on May 13, 2008 petitioner served the district attorney with his section 1381 request for a speedy trial petitioner and Manjinder were not jointly but separately charged under different accusatory pleadings. It was not until March 17, 2008, more than six months after the information against petitioner was filed, that the Court apparently granted the People’s motion to consolidate the cases for jury trial pursuant to section 1098. There are circumstances in which defendants may be jointly tried though they were not jointly charged with a public offense. However, the provisions of section 1050.1 do not relate to that situation, but instead to the granting of continuances in cases consolidated for trial that involve jointly charged defendants. Section 1098, which does relate to whether cases should be consolidated for trial or tried separately, states that “the fact that separate accusatory pleadings were filed shall not prevent their joint trial” (italics added), but the preference for joint trial set forth in section 1098 applies only to situations in which “two or more defendants are jointly charged with any public offense,” which, as we have explained, was not here the case at the time petitioner filed his section 1381 request, when there were separate accusatory pleadings against him and his son.
Though the case law is not clear (see, e.g., People v. Ferris (2000) 82 Cal.App.4th 1272, 1276), it appears that the combination for trial of charges set forth in separate accusatory pleadings is properly referred to as “consolidation” not “joinder.” (See § 954 [stating that if two or more accusatory pleadings are filed alleging two or more different offenses connected together in their commission, “the court may order them to be consolidated”]; see also 5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial, § 394, pp. 559-561.)
The fact that petitioner and Manjinder were charged under separate informations distinguishes this case from Greenberger v. Superior Court (1990) 219 Cal.App.3d 487, which is among the few cases in which the needs of a codefendant have been held to justify the compromise of speedy trial rights. Greenberger is also distinguishable because the speedy trial right in that case arose under section 1382, which, unlike section 1381, contains a good cause exception. However, the most important distinction between that case and this one is that the unusual circumstances and findings of good cause to delay trial that were made in Greenberger have no analogs in the present case.
Furthermore, given judicial deference to the right of an incarcerated defendant to a speedy trial, it is doubtful the preference for joint trial could be used to defeat petitioner’s constitutional right to a speedy trial even if he and Manjinder had been jointly charged and, as is also not here the case, petitioner’s speedy trial right arose under section 1382 (requiring that a defendant be brought to trial within 60 days of arraignment) which, unlike section 1381, contains a “good cause” exception.
For example, in Sanchez v. Superior Court (1982) 131 Cal.App.3d 884, the defendant, who had been charged jointly with two codefendants with burglary and had been in custody since his arrest, sought writ review of the denial by the trial court of his motion to dismiss. His trial had been continued beyond the statutory period, over his objection, on the ground that the deputy public defender representing a codefendant was unavailable because he was engaged in other “must-go” criminal trials. Relying on People v. Johnson (1980) 26 Cal.3d 557—in which the Supreme Court held that conflicting trial obligations resulting from the assignment of heavy case loads to chronically overburdened counsel may not constitute good cause for delay of trial of incarcerated defendant under section 1382—the Court of Appeal issued the writ, directing the trial court to vacate its orders denying the defendant’s motions to dismiss and to enter a new order dismissing the information as to the defendant. (People v. Johnson, at pp. 889-890, 893.)
People v. Johnson concluded, “first, that when a client expressly objects to waiver of his right to a speedy trial under section 1382, counsel may not waive that right to resolve a calendar conflict when counsel acts not for the benefit of the client before the court but to accommodate counsel’s other clients. Secondly, . . . that, at least in the case of an incarcerated defendant, the asserted inability of the public defender to try such a defendant’s case within the statutory period because of conflicting obligations to other clients does not constitute good cause to avoid dismissal of the charges. Finally, . . .that a defendant seeking post-conviction review of denial of a speedy trial must prove prejudice flowing from the delay of trial . . . .” (People v. Johnson, supra, 26 Cal.3d at pp. 61-562; see also Barsamyan v. Appellate Division of Superior Court (2008) 44 Cal.4th 960.)
The recent opinion in Ramos v. Superior Court (2007) 146 Cal.App.4th 719, is also instructive. That case holds that good cause, attributed from one jointly charged codefendant to another pursuant to section 1050.1, does not permit a magistrate to continue the preliminary hearing for both defendants beyond the 60 days prescribed by section 859b, in the absence of waiver of the 60-day rule by both defendants. The court pointed out that the language of section 859b—i.e., the statement that “[t]he magistrate shall dismiss the complaint if the preliminary hearing is set or continued more than 60 days from the date of the arraignment, plea, or reinstatement of criminal proceedings . . . unless the defendant personally waives his or her right to a preliminary examination within the 60 days”—is absolute. The Ramos court noted that “inclusion of the defendant’s personal waiver as the only express exception to the 60-day rule suggests the Legislature did not contemplate additional exceptions.” (Ramos v. Superior Court, at p. 729; but see In re Samano (1995) 31 Cal.App.4th 984 .)
What the Ramos court said of section 859b cannot be said of section 1382; but it can be said of section 1381, the statute with which we are concerned. Section 1381 declares that when an imprisoned defendant remains to be tried or sentenced in any other criminal proceeding serves notice of his or her desire to be tried within 90 days “it is hereby made mandatory upon the district attorney of the county in which the charge is filed to bring it to trial within 90 days” of receiving such notice “unless a continuance beyond the 90 days is requested or consented to by the person, in open court,” and provides also that if the action is not brought to trial within the 90 days, the court in which the action is pending “shall, ” on motion of the district attorney or the defendant or the appropriate correctional agency, “or on its own motion, dismiss the charge.” As in Ramos, the inclusion of the defendant’s consent, which under the statute must be “entered upon the minutes of the court,” as the only express exception to the 90-day rule “suggests the Legislature did not contemplate additional exceptions.” (Ramos v. Superior Court, supra, 146 Cal.App.4th at p. 729)
Finally, it warrants emphasis that this case presents none of the factors that have been held to constitute good cause to compromise speedy trial rights even in cases in which, unlike this case, the preference for joint trial set forth in section 1098 and the “good cause” exception of section 1382 are both applicable because the defendant was jointly charged with another person and not incarcerated. The sole reason the trial court denied petitioner’s motion to dismiss and delayed his trial was the “joinder” (or, more precisely, the consolidation) of his trial with that of Manjinder. Arroyo v. Superior Court (2004) 119 Cal.App.4th 460 demonstrates that such a factor does not provide “good cause” even under section 1382, and denial of a motion to dismiss for that reason constitutes an abuse of discretion.
In Arroyo, the trial court continued the petitioner’s trial, over his objection, beyond 60 days from the date he was arraigned on the indictment, as required by section 1049.5 “unless, upon a showing of good cause as prescribed in Section 1050, the court lengthens the time.” The sole reason for the continuance was to permit Arroyo’s joint trial with a codefendant, who was not arraigned until shortly before Arroyo’s scheduled trial date for which the codefendant was then unprepared. Claiming that the delay was not supported by good cause within the meaning of section 1382, the petitioner moved to dismiss the charges against him. Finding that the delay was supported by good cause, the trial court denied the motion. The Court of Appeal reversed. Agreeing with Arroyo that the trial court had erroneously relied upon section 1050.1 to satisfy the “good cause” requirement (Arroyo v. Superior Court, supra, 119 Cal.App.4th at p. 464), the appellate court rejected the People’s argument that good cause was nevertheless provided by the statutory preference for joint trials embodied in section 1098, pointing out that while the preference for joint trial stated in section 1098 “ ‘serves judicial economy and the convenience of the court and counsel, such a consideration cannot subordinate the defendant’s state constitutional right to a speedy trial without a showing of exceptional circumstances.’ ” (Id. at p. 465, quoting Sanchez v. Superior Court, supra, 131 Cal.App.3d at p. 893.) The court pointed out that in all of the section 1382 cases relied upon by the People in which it was found that joinder outweighed speedy trial rights, the codefendant had filed affidavits and declarations demonstrating that the continuance was necessary to adequately prepare the codefendant’s case, or the prosecution made a strong factual showing as to why maintaining joinder outweighed a defendant’s speedy trial rights, and in each case the trial court balanced the codefendant’s constitutional right to effective assistance of counsel against the defendant’s statutory speedy trial rights. That did not happen in Arroyo. (Arroyo v. Superior Court, at p, 465.) As the appellate court concluded, “the record demonstrates maintaining joinder was the sole reason for continuing Arroyo’s trial and the court did not weigh any competing factors—especially Arroyo’s statutory speedy trial right” (id at p. 467), and the delay was not minimal, because the trial date selected was 97 days after Arroyo was arraigned on the indictment. (Ibid.) “Accordingly,” the Court of Appeal determined, “the court’s finding of good cause to continue Arroyo’s trial was an abuse of discretion.” (Ibid.)
In re Samano (1995) 31 Cal.App.4th 984; Greenberger v. Superior Court, supra, 219 Cal.App.3d 487; Hollis v. Superior Court (1985) 165 Cal.App.3d 642; and Ferenz v. Superior Court (1942) 53 Cal.App.2d 639.
The abuse of discretion in this case is stronger than that in Arroyo entirely apart from the fact that this case is not governed by section 1382 but section 1381, which contains no “good cause” exception other than the implied exception for delay attributable to the defendant. Not only did the court below impermissibly rely on section 1050.1, and engage in no weighing process, it erroneously relied as well on the section 1098 preference for joint trial that does not apply to cases consolidated for trial of defendants, such as petitioner and Manjinder, not jointly charged in a single accusatory pleading. The abuse of discretion is materially exacerbated by another factor. When it denied petitioner’s motion to dismiss, the court had long been aware of Manjinder’s earlier expressed intention to move for a separate trial and apparently also the merits of such a motion, which the court quickly granted when it was later made. (See, ante, p. 5, fn. 5.) Finally, although a delay of merely one day beyond the statutory period would be sufficient to warrant granting petitioner’s motion to dismiss (see Ramos v. Superior Court, supra, 146 Cal.App.4th 719), it is worth noting that the delay in this case, 71 days, was far greater.
DISPOSITION
The petition for writ of prohibition is granted. Let a writ of prohibition issue restraining respondent superior court from taking any further action against petitioner in Sonoma County Superior Court case No. FCR239864, except to grant petitioner’s motion to dismiss pursuant to section 1381 and to dismiss the information. Upon finality of this decision, the stay previously issued will be dissolved.
We concur: Lambden, J., Richman, J.