Metropolitan News-Enterprise


Wednesday, October 14, 2009


Page 3


C.A. Clarifies Speedy Trial Rule Where Co-Defendant Gets Continuance




Where a trial is continued based on a speedy trial waiver by one of two defendants, the 10-day grace period in which to conduct the trial after the new date applies only to the waiving defendant, the First District Court of Appeal ruled yesterday.

Div. Five ordered dismissal of a San Francisco Superior Court burglary charge against Donald Smith, holding that prior continuances granted to his co-defendant, Christopher Sims, did not justify trying Smith after the last continuance expired.

Smith and Sims were charged by information in February of this year. Smith was arraigned on Feb. 11, so the 60-day period expired April 13, but Sims’ counsel was unavailable that day due to illness, the court found.

Judge Ksenia Tsenin continued the case as to both defendants, over objection by Smith’s lawyer. She cited Greenberger v. Superior Court (1990) 219 Cal.App.3d 487, which allows a case to be continued past the speedy trial date without a defendant’s consent in order to avoid severing defendants.

On April 23, counsel for Sims notified the court that he was still sick but would be ready for trial April 27. The judge set the case over to April 27 and announced that the case would be tried no later than 10 days after that, or May 7.

On April 28, Smith’s counsel moved to dismiss, and after that motion was denied, a writ petition was filed and the Court of Appeal stayed the trial as to Smith and issued an order to show cause.

Justice Terence L. Bruiniers, writing for the Court of Appeal, said Smith was entitled to the writ and a dismissal under Penal Code Sec. 1382.

The statute, the jurist emphasized, says the court “shall” order a dismissal if the case is not brought to trial within the statutory time, absent good cause or a waiver.

“Smith was not brought to trial within 60 days of his arraignment, and it is clear that Smith did not generally waive his speedy trial rights,” the justice wrote. “Smith consistently objected to continuances, and while Smith does not challenge the showing of good cause for the continuances to April 27, there was no attempt by the prosecution to show good cause to continue the trial beyond April 27.”

The 10-day grace period of Sec. 1382(a)(2)(b), Bruniers said, applies only to a waiving defendant, not one whose trial is continued for good cause without a waiver.

The justice also rejected the argument that the 1990 criminal justice initiative, Proposition 115, permits the delay. Prosecutors cited a mandate that the judge “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.”

Nothing in that language or the legislative history, Bruniers wrote, “suggests that the electorate intended the 10-day grace period of section 1382 should thereby automatically apply to the trial of an objecting codefendant.”

The case is Smith v. Superior Court (People), A124763.


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