Thursday, November 2, 2006
C.A.: Consent to Trial Delay Implied Where Attorney Had Other Case
By TINA BAY, Staff Writer
A defendant impliedly consented to the delay of her trial where her attorney was simultaneously handling another matter sent out for trial, this district’s Court of Appeal ruled yesterday.
In a 2-1 decision, Div. Seven denied a petition for writ of mandate brought by misdemeanor defendant Vardui Rose Barsamyan after a writ was denied by the Los Angeles Superior Court Appellate Division.
Barsamyan, who was arraigned last June on a single count of grand theft, sought review after Superior Court Judge Donna Groman denied a motion to dismiss based on an alleged statutory speedy trial violation.
Penal Code Sec. 1382 provides that a non-custodial misdemeanor defendant who is not brought to trial within 45 days of arraignment is entitled to have the criminal action dismissed. Under Sec. 1382(a)(3)(B), however, if a defendant expressly or impliedly consents without a general time waiver to a trial date beyond the 45 days, the defendant must be brought to trial on the new trial date or within 10 days thereafter.
Barsamyan had consented to being tried beyond the 45th day after her arraignment. Once her counsel announced ready for trial on Sept. 7 of last year, the statutory 10-day “grace period” was triggered, requiring the court to bring her to trial by Sept. 19, since Sept. 17 was a Saturday.
Groman continued the case to Sept. 15—the eighth day of the grace period—when Deputy Public Defender Karen Nash appeared with Barsamyan announcing her client remained ready for trial.
Nash told Groman that she was also announcing ready for trial in another matter involving defendant Gena Veta George, which was in the midst of negotiations and would likely be resolved that day. Citing the possibility of settlement in the George case, Nash asked if Barsamyan’s matter could be delayed to Friday or Monday, within the statutory grace period.
The judge denied Nash’s request to trail, saying that the “defense cannot be ready on two different trials at once” unless another deputy took over Barsamyan’s case that day, which did not happen. Classifying Barsamyan’s case as no longer ready, Groman ordered Barsamyan to return the next day as the first day of a new 10-day grace period, over numerous express objections by Nash.
Less than an hour later, the George case was settled through a plea agreement.
The next day, Barsamyan’s case was continued to Sept. 22 for trial, but on Sept. 21, Barsamyan’s counsel moved to dismiss the action pursuant to Sec. 1382.
Groman denied the motion, and the Appellate Division summarily denied writ relief.
Writing for the Court of Appeal, Justice Fred Woods said Barsamyan was not entitled to dismissal because she impliedly consented to the delay of her trial.
“The record is clear that the George matter was still pending and in fact did not settle until after the Barsamyan matter was called for trial on September 15, 2005,” he wrote. “As a result, we find consent to the delay was implied because Ms. Nash had ‘legitimate commitments’ in the George case even though ultimately the George matter ended in a plea disposition.”
An attorney need not “actually be engaged in trial” in a conflicting case for the implied consent rule to apply, Woods added, because then trial courts would impractically have to wait days to determine whether a case actually proceeds to trial.
Presiding Justice Dennis M. Perluss concurred in the opinion.
Dissenting, Justice Earl Johnson Jr. said that when Barsamyan consented to being tried beyond the 45-day limit, she was agreeing only to a 10-day grace period starting with the delayed trial date, and not to any date beyond the end of that 10-day period.
Under Supreme Court precedent, he said, a delay requested due to the public defender’s heavy caseload reflects routine court congestion and does not justify imposing an additional 10-day grace period.
The jurist noted:
“In this case, not only did the public defender have two clients whose cases had to be settled or tried in a short period of time but the trial court compelled her to involuntarily choose one over the other by refusing to wait even a few hours to see if the other defendant’s case settled—as it did.”
The case is Barsamyan v. Appellate Division (People), 06 S.O.S. 5787.
Copyright 2006, Metropolitan News Company