Metropolitan News-Enterprise


Thursday, January 13, 2011


Page 1


California Supreme Court Agrees to Decide Speedy Trial Issue

Lower Panel Said Deadline Not Extended by Co-Defendant’s Time Waiver




The California Supreme Court yesterday agreed to decide whether the 10-day grace period in which to try a defendant whose trial was continued following a speedy trial waiver also applies to a co-defendant who objected unsuccessfully to the continuance.

The justices, at their weekly conference in San Francisco, unanimously granted review in Smith v. Superior Court (People), 189 Cal.App.4th 769. The First District Court of Appeal, Div. Five, ruled Oct. 28 that the grace period did not apply and that the objecting co-defendant was entitled to a dismissal.

The conference was the first for new Chief Justice Tani Cantil-Sakauye. Smith was one of three cases in which the court granted review and ordered briefing.

The justices denied review in scores of other cases, including one in which the Fourth District’s Div. Three upheld a partnership agreement that forced an attorney who went into competition with his former firm to pay the self-insured retention in a malpractice case.

Second Time

Smith is before the high court for the second time. The Court of Appeal originally ruled in October 2009, reaching the same result it did this past October, but the Supreme Court sent the case back for reconsideration in light of People v. Sutton (2010) 48 Cal.4th 533.

Sutton 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.

Div. Five, in last year’s Smith opinion, said Sutton does not compel a change in the original result.

Donald Smith and Christopher Sims were charged with burglary by information in February 2009. 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.

Trial Court Ruling

San Francisco Superior Court 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.

The panel subsequently ordered dismissal as to Smith, holding that prior continuances granted to Sims did not justify trying Smith after the last continuance expired.

Justice Terence L. Bruiniers, writing for the court, said Smith was entitled to 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.

Proposition 115 Inapposite

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.”

In the non-compete case, the justices unanimously left standing the ruling in Fish v. Rutan & Tucker LLP, G042057.

The lower panel, in an opinion by Justice Raymond Ikola, affirmed a $236,900 judgment in favor of Rutan & Tucker against former partner Robert D. Fish, a patent lawyer who now heads Fish & Associates in Irvine.

At issue was a provision in the partnership agreement defining the circumstances under which a partner who left the firm before a professional liability claim was resolved would still be considered a “Covered Partner” and thus entitled to be indemnified by the firm.

Under the challenged provision, a partner would not be covered if he or she left the firm and practiced within 100 miles of the firm’s Costa Mesa base within two years.

That “toll” or “tax on competition” was reasonable, Ikola said, both abstractly and specifically as to Fish. The firm, he reasoned, was entitled to protect itself rather than be forced to defend, at its own expense, against a claim for liability caused by a partner who had damaged the firm’s bottom line, and enhanced his own, by leaving and by competing.

In other conference action, the justices:

•Agreed to resolve a split as to whether a defendant who is a gang member, but commits a felony without an accomplice, may be convicted of the crime of active participation in the criminal activity of a gang under Penal Code Sec. 186.22(a).

The Third District Court of Appeal answered that question in the negative last September in People v. Rodriguez (2010) 188 Cal.App.4th 722, but the justices acknowledged that other cases “say or suggest” otherwise.

Agreed to decide whether the estate of a man killed by a drunk driver going the wrong way on the freeway was a “victim” entitled to restitution.

Div. Eight of this district’s Court of Appeal, in a September 24 ruling, upheld a $446,486 restitution award against Paul Dean Runyan in favor of the estate of Donald Benge, reasoning that the estate only existed because of Runyan’s crime. Presiding Justice Tricia Bigelow cited People v. O’Casey (2001) 88 Cal.App.4th 967, holding that an insurance company was a direct victim where it made payments to a defendant and to medical providers on his behalf as the result of fraud.

The case is People v. Runyan (2010) 188 Cal.App.4th 1010.


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