Bailon v. Superior Court

• Decision Date: 03 June 2002
• Docket Number: No. B156079.,B156079.
• Citation: 120 Cal.Rptr.2d 360,98 Cal.App.4th 1331
• Court: California Court of Appeals Court of Appeals
• Parties: Armando BAILON, Jr., Petitioner, v. The SUPERIOR COURT of Los Angeles County, Appellate Division, Respondent; The People, Real Party in Interest.

120 Cal.Rptr.2d 360

98 Cal.App.4th 1331

Armando BAILON, Jr., Petitioner, v. The SUPERIOR COURT of Los Angeles County, Appellate Division, Respondent The People, Real Party in Interest.

No. B156079.

Court of Appeal, Second District, Division 7.

June 3, 2002.

As Modified on Denial of Rehearing June 27, 2002.

Michael P. Judge, Public Defender, Kenneth W. Jones and John Hamilton Scott, Deputy Public Defenders, for Petitioner.

No appearance for Respondent.

Steve Cooley, District Attorney, Patrick D. Moran and Brentford J. Ferreira, Deputy District Attorneys, for Real Party in Interest.

WOODS, J.

SUMMARY

Claiming violation of his statutory right to a speedy trial, Armando Bailon, Jr. moved to dismiss his misdemeanor case. The trial court denied the motion, and the Appellate Division of the Superior Court denied Bailon's subsequent writ petition to that court challenging the trial court's ruling. In this court, Bailon now seeks a writ of mandate directing the Appellate Division to vacate its prior order and directing that court to issue a new order compelling the trial court to dismiss the misdemeanor case against Bailon. We issued an order to show cause, and after considering the briefing and oral argument from Bailon and the People, we grant the writ petition.

FACTUAL AND PROCEDURAL SYNOPSIS

Bailon was cited for a misdemeanor violation of Vehicle Code section 23152, subdivision (a), driving under the influence of drugs or alcohol. On November 7, 2001, after he was appointed counsel and while he was free on his own recognizance, Bailon was arraigned and entered a not guilty plea. On November 21, Bailon "waive[d] statutory time," but requested a trial date of December 14. On December 14 ("Day 00 of 10" according to the court's minute order), Bailon appeared but the prosecutor did not, and trial was continued to December 21.

On December 21 (a Friday and day "7 of 10"), the prosecutor (Steven Heller) said, "Your Honor, to the best of my ability to tell at this moment, the People are ready; and so I guess we're going to need to trail this over to Monday as 10 of 10 with a panel ordered. I spoke with [defense counsel] about possibly avoiding that, but ... apparently it's not possible." The prosecutor said no disposition was possible either and gave a three- to four-day estimate for trial. This exchange followed:

"The court: I think we have one judge here on Monday [Christmas Eve]. Any possibility we can start this on Wednesday?

"[Defense counsel (Patricia Hutton-Payton)]: Your Honor, Mr. Bailon would stipulate for last day being Wednesday.

"The court: Excellent.

"[Defense counsel]: That we could start trial on that date."

"The court: That will be the 26th. All right.... Mr. Bailon, you have the right to have your trial start at the latest on Monday. Do you understand that right, give up that right, and agree that we can start this matter on Wednesday, the 26th?

"[Bailon]: Yes, sir.

"The court: Counsel join in the time waiver?

"[Defense counsel]: Yes.

"The court: All right. The matter will be set for trial as 10 of 10 on Wednesday, December 26th." (Italics added.)

The court directed the clerk to call the jury room and order a panel for that date. The prosecutor said nothing.

On December 26, the court noted for the record that the matter was on calendar for trial "as 10 of 10." The prosecutor (Richard Quinones) and defense counsel (Kenneth W. Jones) both announced that they were ready to start trial. The court continued: "We have a problem that I discussed with both counsel in chambers. This matter was on calendar last Friday, as ... day 7 of 10, which would have made the last day for trial Christmas Eve, December 24th. We were short judges on that date, and I asked Miss Hutton Payton, who was standing in for you, Mr. Jones, on that date whether her client, Mr. Bailon, would agree to make today the last day by stipulation instead of December 24th.

"He did waive time until today as last day, and we set the matter for trial; I ordered a panel of 40 jurors for today, but apparently there was a miscommunication between the clerk [and] the jury room. [O]ne of two things happened: Either the clerk who was in [this division] on Friday miscommunicated with the jury assembly room and told them that we needed them for Wednesday, the 2nd, instead of today; or the jury room misheard the clerk and scheduled it for January 2nd. In any event, there are no jurors here today, so we can't begin jury selection. The question is ... whether that constitutes good cause to put the matter over until tomorrow."

Defense counsel (Jones) moved to dismiss the case and objected that "any continuance beyond today's date ... would violate Penal Code section 1382."¹ The prosecutor (Quinones) requested a "good cause continuance" for the next day "based on the clerical miscommunication." (Italics added.) Defense counsel responded that Bailon had been "ready from the beginning" and should not bear the burden of any miscommunication between the court staff.

The trial court ordered a jury panel for the following afternoon and, after explaining the North District's "on call" policy for the record, found good cause for a one-day continuance.² The court acknowledged defense counsel's renewed objection and emphasized that the continuance was without prejudice to Bailon's ability to argue a motion to dismiss the case the next morning.

On December 27, Bailon (through Jones) argued his motion to dismiss. Noting that neither attorney present that day had been in court on December 21, defense counsel stated: "[I]n reading the minute order from December 21st, ... it appears that Miss Hutton Payton was in court [on Bailon's behalf], Mr. Heller was in court [on behalf of the People], and it was at that time agreed that—it was stipulated between the two parties that December 26 ... would be day 10 of 10, or [the] last day, for trial on this matter. And I want to verify, first of all, that that is the court's understanding and that is the People's understanding of the case.

"The court: Yes. That is correct. What happened on Friday is the last day normally would have been December 24th, the day before Christmas. Most of the judges in the building were out, and the court was planning on taking that day off as well. I asked Miss Hutton-Payton whether she would have any objection to waiving a day, essentially, and to beginning the trial on the 26th. She indicated she did not, and both she and Mr. Bailon agreed that trial could start on the 26th instead of the 24th as the last day. But your reading of the file is accurate, yes.

"[Defense counsel]: It is correct. And the People agreed with that also; is that correct, Mr. Quinones?

"Mr. Quinones [the prosecutor]: That is correct, Your Honor.

"[Defense counsel]: All right. Now, the next thing I want to ask: It's the court's belief that we did actually go beyond that time by continuing the case until today. We went beyond the time, for trial.

"The court: That—the record is clear. [T]oday is the 27th, and we were unable to start the trial yesterday because of the absence of jurors....

"[Defense counsel]: I'm making that record because that is what my Appellate Department wanted me to make prior to going into the motion. [¶] Okay. Well, clearly what's happened is the case has been continued, and then the question is whether or not there's been good cause...." (Emphasis added.)

The prosecutor and defense counsel then went on to argue at length whether the miscommunication between the court clerk and the jury assembly room staff constituted good cause for the one-day continuance. The trial court ultimately "reaffirm[ed]" its finding of good cause and denied Bailon's motion to dismiss under section 1382.

Defense counsel moved for a continuance in order to file a writ petition. Bailon first filed a petition in the Appellate Division of the Superior Court. In that petition, Bailon noted that the parties had stipulated that December 26 would be the "last day" he could be tried and that trial did not proceed on that day due to the miscommunication between court personnel. Because the miscommunication did not constitute good cause for a continuance, Bailon argued, his motion to dismiss for failure to bring him to trial within the time limits of section 1382 should have been granted.

On January 25, 2002, without requesting or receiving any opposition, the Appellate Division ruled as follows: "The petition is denied. The defendant and the People may not stipulate or agree as to what day is the "last day" to bring a matter to trial. Under . . . section 1382, subdivision (a)(3)(B), `[w]henever a case is set for trial beyond the 30-day or 45-day period by request or consent, expressed or implied, of the defendant without a general waiver, the defendant shall be brought to trial on the date set for trial or within 10 days thereafter.' It is the language of the statute, not the agreement of the parties, which controls the determination of what is the last day for trial. (People v. Griffin (1991) 235 Cal.App.3d 1740, 1745-1748 [(Griffin)}.) The last day to which [Bailon] consented was December 26, 2001. This date became day `0 of 10' for commencing trial, and thus the failure of the trial court to begin trial December 26 was not cause for dismissal under ... section 1382." (Italics added.)

Later that month, Bailon filed his writ petition in this court. (Code Civ. Proc, § 904.1; see Baluyut v. Superior Court (1996) 12 Cal.4th 826, 829, fn. 3, 50 Cal. Rptr.2d 101, 911 P.2d 1; Owens v. Superior Court (1980) 28 Cal.3d 238, 243, 168 Cal.Rptr. 466, 617 P.2d 1098.) He maintains that his trial was delayed without good cause. In addition, he argues that the parties may lawfully stipulate that a case must be dismissed if delayed beyond an agreed date without good cause, and, in the alternative, if such a stipulation is unenforceable, his consent to the delay was invalid. Bailon requested issuance of a peremptory writ...