Metropolitan News-Enterprise


Friday, October 29, 2010


Page 3


C.A. Rules Again, On Remand From Supreme Court:

Co-Defendant’s Continuance Didn’t Extend Speedy Trial Time 


By a MetNews Staff Writer


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 for the second time.

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.

Conclusion Reiterated

The panel had reached the same result in its previous opinion last October, but the California Supreme Court sent the case back for reconsideration in light of People v. Sutton (2010) 48 Cal.4th 533, which held that good cause existed to extend the 60-day speedy trial period, as to both defendants, where the attorney for one of them was unexpectedly delayed in finishing another trial.

Justice Terence L. Bruiniers, writing for the Court of Appeal yesterday, said Sutton did not alter the analysis the court used in last year’s opinion.

Smith and Sims were charged by information in February of last 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.

Writ and Dismissal

Bruniers 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.

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

“...Sutton did not involve a defendant who requests or consents to the setting of trial beyond the 60-day period....,” the justice noted. “Thus, the application of the 10-day grace period to a jointly charged codefendant who has not consented to trial beyond the 60-day period was not at issue.”

What was at issue was whether there was good cause to delay Smith’s trial past April 27, the justice said, and the prosecution made “no attempt” to show that there was.

Bruniers elaborated:

“No justification was presented for the delay of either Sims’s or Smith’s trial after April 27. Rather, the People seek to justify the continuance beyond April 27 as to Smith solely on joinder grounds. However, in all of the cases in which joinder interests have been found to outweigh speedy trial rights, some valid justification for delay has been presented—for example, that the continuance was necessary to ensure the codefendant’s right to effective assistance of counsel.”

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), 10 S.O.S. 6119.


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