Metropolitan News-Enterprise


Friday, October 2, 2009


Page 3


Supreme Court Agrees to Review Riverside Speedy Trial Dismissals


By a MetNews Staff Writer


The California Supreme Court has agreed to decide a pair of cases dealing with the effect of crowded criminal dockets on speedy trial rights.

The justices, at their weekly conference in San Francisco Wednesday, unanimously granted review in People v. Hajjaj (2009) 175 Cal.App.4th 415, and People v. Wagner (2009) 175 Cal.App.4th 1377.

In Hajjaj, the Fourth District Court of Appeal’s Div. One held that the inability of parties and counsel to travel from the criminal calendar court in Riverside to an available courtroom 76 miles away before it closed for the day, on the last statutory day for trial, constituted good cause for a continuance.

That contrasted with the ruling by that district’s Div. Two in Wagner, which upheld a dismissal order by another Riverside judge, who declared on the last statutory day that there were no courtrooms available, declining to send the case to a courtroom that lacked jury facilities or to a satellite facility that was only used for civil cases.

On June 29, Div. One reinstated the information charging Firme Hajjaj with one felony count of transporting methamphetamine for sale which Judge Thomas H. Cahraman had dismissed based on the lack of a speedy trial.

Hajjaj was out of custody on bail pending commencement of trial, which was trailed several times by the Riverside Superior Court’s master calendar department due to “courtroom unavailability.”

According to court records, both parties indicated that they were ready for trial on July 28, 2008—and defense counsel objected to any further delay.

Cahraman noted that it was the last day of the statutory speedy trial period, but informed the parties, “I seem to be out of courtrooms.”

‘Out of Courtrooms’

At around 4:15 p.m., Cahraman informed the parties that a courtroom had just become available in Indio, but as he estimated it would take over an hour and 20 minutes for the parties and counsel to travel there from the Riverside Hall of Justice, determined it would be futile to send the matter to Indio for trial.

The prosecutor suggested that another deputy district attorney could appear at the Indio courtroom “within the next five minutes” and be ready to proceed, but Cahraman replied that without the defendant, defense counsel or an empaneled jury, having a prosecutor present in Indio would not be “the start of a trial under the law.”

Although Cahraman noted there would be “an Indio court open tomorrow” and “[m]any courts” would become available the following Monday, he declined to find good cause for the prosecutor’s request for a continuance and later granted Hajjaj’s dismissal motion.

Writing for the appellate court, Justice Gilbert Nares explained that having a deputy district attorney in Indio, without the presence of Hajjaj and his counsel of record, would not satisfy the requirements for bringing a case to trial, but hypothesized that Hajjaj’s case could have been brought to trial within the statutory time period if a courtroom within the Riverside Hall of Justice had been available.

The trial court “overlooked the fact that in a large and populous county like the County of Riverside, which is served by one superior court consisting of a central courthouse (the Riverside Hall of Justice) and various outlying branch facilities (such as the Indio court), the administration of justice and the efficient utilization of limited judicial resources may require the parties to a criminal proceeding to travel to a distant court facility,” Nares wrote.

As Hajjaj was not in custody, Nares said he would not suffer any prejudice from a one-day delay in the commencement of the trial and so the trial court had abused its discretion in declining to find the physical remoteness of an available court room to be good cause for a continuance.

Dismissal Affirmed

On July 21, Div. Two affirmed the dismissal of an information charging Troy Robin Wagner with assault with a semiautomatic firearm. In an opinion by Justice Betty Richli, the court said Judge Helios (Joe) Hernandez did not abuse his discretion by denying the prosecution a continuance and did not err in consequently dismissing for lack of a speedy trial.

On Sept. 22 of last year, Hernandez called Wagner’s case and three others for trial. He informed the lawyers that there were no civil or criminal courtrooms available, and that he would not send any of the cases to a family law or juvenile law courtroom due to the lack of jury boxes and the social importance of family law and juvenile cases.

He also declined to send a criminal case to an elementary school that had been converted to a three-judge court facility, saying it would not be safe for jurors, lawyers, or witnesses, and noting that visiting judges were assigned to the facility specifically to try civil cases. Nor would he divert himself from his calendar duties to conduct a trial, leaving no one to handle the calendar, he said.

Prosecutors elected to appeal rather than refile the case.

Richli, distinguishing Hajjaj, said there was no error in dismissing. Unlike the situation in that case, she explained, there was no available criminal courtroom anywhere in the county.

Preference Not Absolute

The Penal Code Sec. 1050 rule that preference be given to criminal cases, the justice explained, is not absolute, so a trial judge may consider other factors, such as the suitability of a particular facility, the justice said. All that the law requires, she explained, is that “the trial court exercise[s ] its discretion by prioritizing cases in the available courtrooms.”

She added:

“The trial court clearly set forth its reasons for not disturbing family, probate, and other special-proceeding courts that were engaged in important cases. It also concluded that the facilities at Hawthorne Elementary School were not acceptable for trying criminal cases based on lack of security. We have to assume that such determination was proper, as the People have provided no evidence to the contrary.”

In another conference action, the high court denied review of a First District Court of Appeal ruling approving a class action settlement between Bank of America and customers who claimed their private information was turned over to telemarketers without their knowledge or consent.

The Court of Appeal’s Div. Five ruled June 30 that San Francisco Superior Court Judge Richard Kramer did not abuse his discretion in approving the settlement. The bank agreed to pay $3.25 million to nonprofit organizations involved in privacy issues, up to $10.75 million in benefits—such as waivers of fees for bank services and discounts on fees for loans—to class members, and up to $4 million in attorney fees and court costs.

Confidential Information

In exchange, the plaintiffs agreed to dismiss their complaint alleging causes of action for unlawful and fraudulent business practices, false or misleading advertising, invasion of privacy in violation of the common law and the California Constitution, and unjust enrichment. They alleged the confidential information that the bank disclosed, for a fee, included account numbers, account balances, credit limits, social security numbers and other “sensitive” information.

Kramer approved the settlement and awarded a little more than $3 million in fees and costs. Objecting class members contended that the attorneys ignored their fiduciary duties in order to maximize their fees and that the $1 million difference between the maximum allotted for fees and costs and the actual award should have gone to the class, instead of reducing the total liability of the bank.

The Court of Appeal, in an opinion by Alameda Superior Court Judge Terrance L. Bruniers, sitting on assignment, said the practice of class counsel negotiating maximum fees with the defendant as part of a “clear sailing agreement,” although sometimes criticized as subject to abuse, is permissible under both the American Bar Association and California ethics rules. Nor, the jurist said, was the amount of the award excessive in light of the benefits obtained by the class.

Bruniers also noted that the trial judge conducted two hearings and made an extensive analysis before determining the amount of the award.


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