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C.A. Won’t Reinstate Conviction of Man Not Bused to Court on Day Scheduled for Trial
Administrative Foul-Up, Appellate Department Opinion Says, Does Not Constitute Good Cause for Continuing Last-Day Case to Next Morning
By a MetNews Staff Writer
The Court of Appeal has left standing an Appellate Division opinion saying that a judge breached an accused’s speedy-trial rights in a last-day case by declaring good cause for continuing a trial to the next morning where jail officials had failed to put the defendant on the bus headed for the courthouse and, as it was around 11:30 a.m., it was too late to assemble a jury panel or provide for transportation.
Div. Three of the Fourth District Court of Appeal on Friday decided not to transfer the case to itself. As a result, James Davisbragdon’s conviction for violating a protective order is invalidated, pursuant to an Aug. 9 decision by the Orange Superior Court’s Appellate Division.
The law is clarified that a defendant who pleads not guilty to a misdemeanor, does not waive time, is not brought to trial within the statutorily defined time limits, and whose motion for a dismissal is denied, must, in an appeal from a conviction, show prejudice from the delay, but that prejudice necessarily exists where the motion for a dismissal should have been granted.
Appellate Division Judge Scott Van Camp authored the opinion. It says that Orange Superior Court Judge James Rogan violated Davisbragdon’s right under Penal Code §1382, which says that a dismissal shall be ordered under various circumstances, including that set forth in subd. (a)(3): “when a defendant in a misdemeanor…case is not brought to trial within 30 days after he or she… enters his or her plea…if the defendant is in custody at the time of…plea.”
Also coming into play was Penal Code §1387 which precludes, with exception, the refiling of dismissed misdemeanor charges.
Contracted COVID
Davisbragdon, while in custody, on Dec. 2, 2021, pled not guilty to inflicting “corporal injury resulting in a traumatic condition upon a victim,” a felony, and violating a protective order, a misdemeanor/contempt, and did not waive time for trial on the alleged offenses. On Jan. 3, 2022, which ordinarily would have been the last day for bringing him to trial, the defendant was not transported to the courthouse because he tested positive for COVID-19.
Orange County Deputy County Health Officer Chun Hsien Chiang said in a declaration that if the defendant were to test negative for COVID on Friday, Jan. 7, it would be safe for him to go to court the next Monday, and, good cause having been found by the court, trial was continued to that date. But on Jan. 10, Davisbragdon, though then asymptomatic, was left behind in the jail.
Over the objection of his lawyer, Rogan ruled that good cause existed to continue the trial for one day. On Jan. 11, Orange Superior Court Judge Jeremy Dolnick dismissed the felony charge but not the misdemeanor count; it went to trial; Davisbragdon was convicted by a jury and appealed.
Prejudice to Defendant
The Orange County District Attorney’s Office contended that the defendant cannot show prejudice actually from a one-day delay in the trial and that, under case law, prejudice cannot be predicated on the fact that if dismissal had been granted, Penal Code §1387 would bar a re-filing of the case. Davisbragdon, on the other hand, insisted that he need show prejudice to be entitled to a reversal.
“[B]oth parties are incorrect, Van Camp wrote, setting forth:
“Contrary to defendant’s claim, prejudice is required on appeal from the denial of a statutory speedy trial motion in a misdemeanor case….And contrary to the People’s claim, section 1387’s prohibition against refiling a case can establish that prejudice in certain misdemeanor cases….All of the cases the People cite hold that a defendant may not appeal the denial of a speedy trial motion (whether statutory or constitutional) in a misdemeanor case following a guilty plea because the defendant’s guilty plea eliminates any possible prejudice to the defendant caused by the delay….”
But, he noted, Davisbragdon had pled not guilty, finding that the cited cases “do not stand for the proposition that section 1387’s prohibition against refiling certain misdemeanor cases cannot establish prejudice on appeal when the defendant is convicted at trial.”
Van Camp said that while §1387 generally bars a misdemeanor charge from being refiled if it is dismissed pursuant to §1382, “[t]here are exceptions to this general rule.” However, he continued, “most of them apply to domestic violence cases,” but “[a]lthough the People charged defendant with domestic violence crimes,” the exceptions are facially inapplicable.
Van Camp declared that Rogan “violated” Davisbragdon’s “right to a speedy trial” but did not explain what the judge should have done under the circumstances, given his perception that fetching the defendant and starting jury selection were both impractical, nor did he specify that there was nothing the judge could have done in the wake of the jailhouse snafu.
“The People do not claim there was good cause for the continuance, and rightfully so,” he wrote, citing the 1991 “By the Court” opinion of Div. Three of this district’s Court of Appeal in Jackson v. Superior Court, describing it as a case in which it was decided that the “sheriff’s failure to timely transport defendant to court is not good cause for continuance.”
(The facts stated in that opinion were that the Sheriff’s Office did deliver the defendant to the courthouse on the day of the scheduled appearance, but at about 11:15 a.m., which was not in compliance with “the judge’s unilateral policy of requiring defendants to be in court no later than 9:30 a.m. for assignment to a trial court.”)
The case is People v. Davisbragdon, 2023 S.O.S. 3086.
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