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Court of Appeal:
No Good Cause for Delay Due to Prosecutor’s Unavailability
Opinion Says Rape Case to Be Dismissed on Speedy Trial Ground; Assistant D.A. Was Not Engaged in Other Matter Where It Was Stipulated That Trial Was ‘Deemed’ to Have Started When It Hadn’t
By Kimber Cooley, associate editor
Div. Five of the First District Court of Appeal has held that a trial judge erred in denying a defendant’s motion to dismiss a criminal complaint charging him with forcible rape based on unreasonable delay in bringing the case before a jury, saying that the continuances based on the prosecutor being engaged on another matter were granted in error where the other proceedings had only been deemed to have started based on a stipulation between the parties.
At issue is the interplay between two statutes addressing the mandatory timelines established for criminal proceedings, on the one hand, and what constitutes good cause for continuances, on the other. Penal Code §1382 provides that, absent sufficient justification for any delays, a defendant charged with a felony is entitled to have the case dismissed if it is not brought to trial within 60 days of arraignment.
Sec. 1050(g)(2) provides that “good cause” for a continuance exists if a prosecutor assigned to a sexual assault case has “has another trial, preliminary hearing, or motion to suppress in progress.”
Wednesday’s opinion, by Acting Presiding Justice Mark B. Simons, declares that a prosecutor does not have another proceeding “in progress” where the other trial has only been deemed to have started by stipulation between the parties in light of the assigned courtroom being engaged in an unrelated matter. Simons wrote:
“Today we reject the People’s attempt to broaden [Section 1050(g)(2)] by refusing to acquiesce in the use of trial ‘stacking’ to avoid compliance with the ‘in progress’ requirement….The trial court erred in denying petitioner’s section 1382 motion to dismiss.”
Writ Petition
The question arose after Hector Hernandez was charged with forcible rape and other charges in March 2024. He asserted his right to a speedy trial in October, and March 14 was determined to be the deadline to present the case to a jury.
San Francisco County Assistant District Attorney Sheila Johnson was assigned to Hernandez’s case and another one involving sexual assault charges, People v. Libaniel Lopez Perez. Trial was scheduled in both cases for March 12.
On that day, Caffese informed the parties in the Lopez Perez case that she was sending that trial to “Department 23 before Judge [Linda] Colfax” and remarked that “I will ask for stipulation…for purposes of your statutory speedy trial rights that you agree that your trial has commenced,” noting that Colfax was currently overseeing jury selection in a different matter. Lopez Perez agreed to the stipulation.
Caffese then granted Johnson’s request to continue the trial in Hernandez’s case until March 21, over the defendant’s objection, based on the prosecutor having been assigned to the Lopez Perez matter. The case was also sent to Colfax’s courtroom, with the understanding that one trial would follow the other.
Additional continuances were granted to allow the case to trail behind Lopez Perez. On April 4, Hernandez moved to dismiss under §1382; Caffese denied the request.
Wednesday’s decision, joined in by Justices Gordon B. Burns and Danny Y. Chou, granted Hernandez’s writ petition, directing the trial court to “issue a new order granting” the motion to dismiss.
In Progress
Simons cited the 2012 Burgos v. Superior Court case in which Div. Five held that another trial is “in progress” only when the judge overseeing the other trial is “available and ready to try the case to conclusion, the court has committed its resources to the trial, and the parties are ready to proceed.”
The district attorney’s office argued:
“Respondent Court made use of its limited resources by stacking a trial in Department 23 such that as the previous trial there concluded, the trial court could get started on [Lopez Perez, a] more complex sex assault case [that] involved a minor victim.”
Rejecting the view that the stipulation allowing for the stacking of the trials could meet the “good cause” standard, the jurist said:
“We agree with petitioner that the stipulation from the Lopez Perez defendant that trial had commenced in his case is irrelevant to petitioner’s case. No stipulation by that defendant could bind petitioner in this case. Further, the issue is whether the court in Department 23, in fact, had committed its resources and was available to try Lopez Perez to conclusion, not whether the Lopez Perez defendant was, upon request from the trial court, willing to stipulate that trial had commenced ‘for purposes of [his] statutory speedy trial rights.’ The People point to nothing in the stipulation that…demonstrates that trial was in progress.”
He continued:
“It may be that there are situations in which a trial court can have more than one trial ‘in progress’ for purposes of Section 1050(g)(2), but we need not resolve that question in the present case and we will not venture to hypothesize circumstances that might test that proposition. We agree ‘that whenever possible our trial courts should be permitted to make the maximum and optimum use of their finite resources.’…But trial court calendar management must comply with the law, and it is clear that Section 1050(g)(2) did not apply to the March 12 and March 21 continuances in the present case, where it is undisputed that the judge in Department 23 was not available to commit to trying Lopez Perez to conclusion until the end of March, at the earliest.”
In a footnote, the justice acknowledged that prosecutors may choose to refile charges against Hernandez, causing the clock to restart. However, he said that the defendant, on remand, could request that the original case proceed to avoid any further delays.
The case is Hernandez v. Superior Court, A173010.
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