State Supreme Court Agrees to Review Speedy Trial Ruling

Thursday, February 22, 2007

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State Supreme Court Agrees to Review Speedy Trial Ruling

Justices to Decide Whether Consent to Delay Implied Where Attorney Had Another Case Pending

By a MetNews Staff Writer

The California Supreme Court yesterday agreed to decide whether a defendant impliedly consented to the delay of her trial where her attorney was simultaneously handling another matter sent out for trial.

The justices, at their weekly conference in San Francisco, unanimously granted Vardui Rose Barsamyan’s petition for review of a ruling by Div. Seven of this district’s Court of Appeal, which denied her petition for a writ of mandate. Barsamyan is seeking to block her trial on a single count of grand theft.

Barsamyan, who was arraigned in June 2005, contends that Los Angeles Superior Court Judge Donna Groman erred in denying her motion to dismiss on the basis of a Penal Code Sec. 1382 violation. The statute generally provides that a non-custodial misdemeanor defendant who is not brought to trial within 45 days of arraignment is entitled to a dismissal.

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.

Statutory Grace Period

Barsamyan consented to being tried beyond the 45th day after her arraignment. Once her counsel announced ready for trial on Sept. 7, 2005, 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, when Deputy Public Defender Karen Nash appeared with Barsamyan and announced 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.

Request to Trail

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 Nash’s objection.

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 Superior Court Appellate Division summarily denied writ relief, which was then sought from the Court of Appeal.

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. Nash, Woods wrote, had “legitimate commitments” in the George case, even though the case pled out.

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.

In other conference action, the justices declined to review a Nov. 20 ruling by Div. Seven, holding that a pair of Santa Monica City Council members cannot sue their colleagues for continuing meetings well into the night, which the plaintiffs claim prevents citizens from speaking and thus violates the Ralph M. Brown Act.

Herbert Katz and Robert Holbrook asked Los Angeles Superior Court Judge David Yaffe to enjoin the council from meeting past 11 p.m., but the judge ruled that such an injunction would curtail fellow council members’ and citizens’ free speech rights and granted the city’s anti-SLAPP motion.

Justice Laurie Zelon, writing for the Court of Appeal, said the trial judge was correct, rejecting the plaintiffs’ claim that they were seeking to protect, rather than deny, rights of free speech and petition, as well as open government. The inevitable effect of their requested injunction, the jurist reasoned, would be to deny citizens their right to be heard in public comment whenever the council failed to conclude all other business before 11 p.m.

The plaintiffs lacked standing, Zelon went on to say, because they were not “interested persons” within the meaning of the Brown Act. The Legislature, Zelon wrote, did not intend the Brown Act to be used as a weapon by which dissident officials could persuade the courts to order that which they could not persuade their colleagues to do.

“[W]e conclude that when Holbrook and Katz accepted their seats on the Santa Monica City Council they forfeited the Brown Act standing they would otherwise have had as citizens of California to sue the City Council.”