Metropolitan News-Enterprise


Tuesday, July 3, 2012


Page 1


Supreme Court Rules:

Co-Defendant’s Continuance Extends 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 to the co-defendant, as well as the one who waived time, the state Supreme Court ruled yesterday.

The high court unanimously reinstated San Francisco Superior Court burglary charge against Donald Smith. The justices said there was good cause to try Smith within the same time period as his co-defendant, Christopher Sims, in order to maintain joinder, even though Smith did not join in the last continuance requested by Sims.

The First District Court of Appeal reached a contrary conclusion in October 2009 and granted Smith a dismissal. The high court sent the case back for reconsideration in light of People v. Sutton (2010) 48 Cal.4th 533, but the First District’s Div. Five again reversed in October 2010.

Sutton held that good cause existed to extend the 60-day speedy trial period, as to two defendants, where the attorney for one of them was unexpectedly delayed in finishing another trial. The Court of Appeal said that conclusion did not alter its original analysis, that the grace period of Penal Code Sec. 1382(a)(2)(b) applies only to a waiving defendant, not to one whose trial is continued for good cause without a waiver.

Smith and Sims were charged 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.

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.

It subsequently granted the writ, emphasizing that Sec. 1382 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.

But Chief Justice Tani Cantil-Sakauye, writing yesterday for the high court, said the state’s interest in joinder constitutes good cause to continue—for a reasonable period—the trial of someone whose codefendant has obtained a continuance, and that Sec. 1382 expressly re­cognizes that 10 days is a reasonable period for the continuance.

“The trial court’s need for reasonable flexibility is accommodated by section 1382’s grace period, and defendants’ right to a speedy trial is protected by the 10-day limit upon that grace period,” the chief justice wrote.

The chief justice rejected an argument advanced by the Los Angeles County Public Defender’s Office, as amicus, that a ruling for the prosecution would allow future defendants to unilaterally waive the speedy trial rights of codefendants. It is up to the trial judge to determine, under these types of circumstances, whether to deny the continuance, continue the trial as to both defendants, or continue as to the moving defendant and grant the non-moving defendant an earlier trial, Cantil-Sakauye reasoned.

Justices Marvin Baxter, Joyce L. Kennard,. Goodwin J. Liu, Ming Chin, and Carol Corrigan concurred. Justice Kathryn M. Werdegar concurred separately, arguing that when a defendant shows good cause for continuance under Sec. 1050.1, the 10-day grace period automatically applies to codefendants, so it was unnecessary to determine what effect Sec. 1382 has.

The case is Smith v. Superior Court (People), 12 S.O.S. 3247.


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