Metropolitan News-Enterprise


Monday, November 18, 2019


Page 3


Court of Appeal:

Judges Have Inherent Authority to Decide What ‘Proper Notice’ Is

Opinion Says Trial Courts May Allow Oral Announcement of Defendant Withdrawing Time Waiver Or May Require That Notice Be Provided in Writing


By a MetNews Staff Writer


A statute requiring that “proper” notice be given by a criminal defendant before withdrawing a time waiver in open court and does not define “proper” vests discretion in the trial judge to allow oral notice or require that writing be served and filed, the First District Court of Appeal has held.

Justice Jon Streeter of Div. Four wrote the opinion.

The requirement of giving “proper notice” is contained in Penal Code §1382, which provides:

“If the defendant, after proper notice to all parties, later withdraws, in open court, his or her waiver in the superior court, the defendant shall be brought to trial within 30 days of the date of that withdrawal.”

Defendant Brandon Daws’s lawyer provided oral notice at a pretrial conference in chambers, which Contra Costa Superior Court Judge Judy Johnson declared to be inadequate, mandating that two days’ notice in writing be provided. She set trial on the misdemeanor charges—possession for sale of cannabis, transportation of cannabis, and driving with a suspended license—for 80 days later.

Motion for Dismissal

After 30 days had elapsed, he moved for dismissal on the ground that his speedy trial right had been abridged. The motion was denied and Daws sought a writ in the court’s Appellant Division to establish that the oral notice he gave in court sufficed. Two judges disagreed with him and one agreed.

He petitioned the Court of Appeal which summarily denied the writ petition. The California Supreme Court granted review and remanded with the instruction to issue an order to show cause why relief should not be granted.

“Once again, we shall deny writ relief,” Streeter said in Thursday’s opinion, “this time with an explanation.”

Trial courts, he declared, “have inherent authority to determine by local rule or as a matter of courtroom practice what ‘proper notice’ under section 1382 means, so long as the required notice is consonant with the defendant’s right to a speedy trial under article I, section 15 of the California Constitution and the Sixth Amendment of the United States Constitution, as implemented by section 1382.”

He added:

“We hold that two days’ written notice meets that standard.”

Definition Not Provided

Streeter noted that when the Legislature amended §1382 in 2009 to require that withdrawals of time waivers be made in “open court,” it did not choose to specify what sort of notice was required. He wrote:

“By leaving in place the open-ended requirement of ‘proper notice,’ the Legislature avoided specifying a particular notice rule and left the courts to determine the mode and timing of notice that must precede the announcement of the withdrawal in open court. Whatever policy considerations led the Legislature to enact the language it did, the dispositive consideration is that the language of section 1382, subdivision (a)(3)(A) does not mandate a particular notice rule. Instead, the statute leaves room for the Judicial Council to adopt a state-wide rule defining proper notice, which we would urge it to do to ensure that defendants and their counsel have advance knowledge of the required notice procedure to be followed.”

The jurist continued:

“We need not here attempt to say what the outer boundary of such a rule might be. All we hold is that in the absence of a uniform state-wide rule or a local rule of court, individual trial courts are empowered to determine what is reasonable in light of local practice. It may be accepted practice in some courts for defendants to provide informal notice of their intent to withdraw a time waiver on the same day time is pulled. We do not question the authority of those courts to continue following that approach in the absence of any rule to the contrary, should they deem it most fitting for their local conditions and circumstances.”

He underscored that the state constitutional right to a speedy trial must be observed.

The case is Daws v. Superior Court, 2019 S.O.S. 3567.

Ironically, Johnson was executive director of the State Bar during the years when Streeter was a member of the State Bar Board of Governors. (After her resignation in early 2011, he went on to become 2011-12 State Bar president.)


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