Friday, September 7, 2018
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Court of Appeal:
Announcing ‘Ready’ Not Necessary to Trigger 10-Day Grace Period for Starting Trial
By a MetNews Staff Writer
The Court of Appeal for this district has held that where there has been a speedy-trial waiver, a formal announcement of “ready” by the defense on the date set for trial is not necessary for the 10-day period to be triggered within which the prosecution must commence—with dismissal being required if it doesn’t, absent good cause—where the defense has otherwise evinced its ability to proceed.
Contrary judicial utterances—including one in a 2008 California Supreme Court decision—were dicta, Justice Thomas Willhite of Div. Four declared in an opinion filed late Wednesday. The opinion announces the issuance of a writ of mandate directing the Los Angeles Superior Court’s Appellate Division to vacate its Jan. 25 order denying a writ of prohibition.
The division is required to issue a new order, commanding the trial court to dismiss an action against smog technician Alexander Pogosyan charging him with driving under the influence of a drug within 10 years of conviction of a DUI offense.
At issue is an application of Penal Code §1382 which provides—as it pertains to an accused misdemeanant who is not in custody—that the defendant is entitled to trial within 45 days of arraignment, and if he or she agrees to a specified trial date beyond that time, “the defendant shall be brought to trial on the date set for trial or within 10 days thereafter.”
Defense Objection
Pogosyan was not in custody, and trial was set for last Dec. 20, beyond the 45 days. On Dec. 20, the prosecution indicated it needed additional time and trial was re-set by Los Angeles Superior Court Judge Beverly L. Bourne, over the defense’s objection, to Jan. 2.
The matter was not brought to trial on that date and on Jan. 3, the defendant moved for dismissal.
Los Angeles Superior Court Judge Tim R. Saito denied the motion, followed by the Appellate Division’s rejection of a writ petition. It reasoned that “because petitioner never announced ready for trial on December 20, 2017, the 10-day period for commencing the trial did not begin to run…, and petitioner’s right to a speedy trial, therefore, was not violated.”
It cited the Court of Appeal’s 2000 decision in Medina v. Superior Court. There, Div. Five of this district, in an opinion by then-Los Angeles Superior Court Judge William R. Weisman (now retired), sitting on assignment, said that the “10-day period does not begin to run until the defendant announces ready for trial.”
High Court Directive
Initially, the Court of Appeal summarily denied Pogosyan’s writ petition, but the California Supreme Court granted review. It then bounced the case back to Div. Four, instructing that the Superior Court be ordered to show cause why a dismissal should not be mandated.
That order was issued, the court responded, and Pogosyan replied.
In explaining the issuance of a previously denied writ, Willhite said that the court in Medina “[r]egrettably” relied on “imprecise language” that “[u]nfortunately” appeared in a 1986 opinion in People v. Bryant, rendered by Div. Four of this district’s Court of Appeal. In that opinion, then-Presiding Justice Arleigh Woods (now retired) cited precedent for the proposition that an “announcement of unconditional readiness for trial” must accompany an objection to a continuance to trigger the 10-day period.
Chief Justice’s Opinion
Willhite also noted the California Supreme Court’s 2008 decision in Barsamyan v. Appellate Division of Superior Court. Then-Chief Justice Ronald George, now retired, wrote:
“In order to initiate the 10-day grace period, counsel must announce readiness for trial, an announcement that comprises a claim of readiness for immediate trial.”
He also said in that opinion:
“Once the defendant has announced readiness for trial and initiated the running of the 10–day period…, the defendant essentially has demanded immediate trial, subject to the prosecution’s 10–day grace period.”
The holding in that case was that “when appointed defense counsel appears for trial in two matters, and the calendar court selects or requires counsel to select a single matter to be sent to a trial department for trial, counsel necessarily consents to continuance of the remaining matter.”
Utterances Were Dicta
In Wednesday’s opinion, Willhite examined Barsamyan and said:
“Although the court stated that defense counsel ‘must announce readiness for trial’ to initiate the 10-day grace period, it is clear from the context that the court’s focus was on counsel’s actual readiness for immediate trial, which it observed ordinarily is expressed by an announcement of readiness….In light of the issue actually before the court, and the court’s focus on the actual readiness of defense counsel rather than the requirement of a readiness announcement, we conclude that the court’s statement that an announcement is required to trigger the 10-day grace period under section 1382 is dictum and therefore not binding authority.”
The jurist went on to say:
“Although the best way to determine whether the defendant is ready for trial is for the trial court to ask the defendant to state his or her readiness, no such request was made in this case and defense counsel did not independently announce “ready.” Nevertheless, defense counsel made clear in her arguments against the prosecutor’s motion for a continuance heard on the date set for trial that she was, in fact, ready for immediate trial, and the prosecutor and the trial court proceeded with the understanding that the 10-day grace period…had been initiated.”
Willhite cautioned:
“We emphasize that we do not mean by our ruling to hold that defense counsel may remain silent on the continued trial date, or simply object (without more) and expect that the 10-day grace period will be triggered. Counsel must clearly and unambiguously communicate actual readiness–either through a formal “announcement” or, as in this case, by statements made that demonstrate that the defendant is willing and able to proceed to immediate trial–in order to trigger the grace period.
He suggested, in a footnote, that judges avoid any uncertainty by asking a defense lawyer who is objecting to a continuance if he or she is ready.
The case is Pogosyan v. Appellate Division of the Superior Court of Los Angeles County, 2018 S.O.S. 4410.
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