Batey v. Superior Court

• Citation: 139 Cal.Rptr. 689,71 Cal.App.3d 952
• Court: California Court of Appeals
• Decision Date: 25 July 1977
• Parties: Byron BATEY, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF LOS ANGELES, Respondent; PEOPLE of the State of California, Real Party in Interest. Civ. 50106.

Page 689

139 Cal.Rptr. 689

71 Cal.App.3d 952

Byron BATEY, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF LOS ANGELES, Respondent;

PEOPLE of the State of California, Real Party in Interest.

Civ. 50106.

Court of Appeal, Second District, Division 5, California.

July 25, 1977.

Rehearing Denied Aug. 18, 1977.

Hearing Denied Sept. 22, 1977.

Simon & Sheridan, D. Steve Cameron, and Thomas R. Sheridan, Los Angeles, for petitioner.

John K. Van De Kamp, Dist. Atty., Donald J. Kaplan, and Roderick W. Leonard, Deputy Dist. Attys., for real party in interest.

No appearance for respondent.

HASTINGS, Associate Justice.

The petitioner herein seeks a writ of mandamus compelling respondent court to dismiss a pending indictment because the matter was not brought to trial within the time periods specified in section 1382 of the Penal Code.

The procedural facts are these: Petitioner and a codefendant were indicted on December 11, 1975, on eight counts of grand theft (Pen.Code, § 187, subd. 1) and nine counts of violating section 29100 of the Corporations Code ('bucketing'). Trial was first scheduled for April 29, 1976. A continuance was sought by both the People and the codefendant, the former because one of their witnesses was ill, the latter due to a need for further preparation. Trial was continued to July 13, 1976. ¹

On June 16, 1976, respondent granted petitioner's motion to dismiss the Corporations Code, section 29100 counts. ² On July 2, 1976, petitioner requested a continuance of the July 13th trial date to enable him to seek appellate review of respondent's rulings on various pretrial motions. Trial was rescheduled for October 13, 1976, petitioner waiving his right to be tried sooner and being advised that he had a right to be tried on October 13th or within ten days thereafter. Deputy District Attorney Chan participated in the July 2nd hearing and in the decision to continue trial to October 13th.

On October 7, 1976, the People noticed a motion to continue the October 13th trial date. ³ The motion was supported by the declaration of Deputy District Attorney Chan wherein he declared that he was engaged in the jury trial of a matter entitled People v. Yarbrow which had commenced September 13, 1976, and which he estimated would last six to eight weeks. He asserted that no other deputy district attorney had been involved in the investigation of petitioner's case, nor was any other deputy district attorney familiar with the facts and circumstances surrounding petitioner's case. A short continuance was requested.

At the hearing held October 13, 1976, on the motion to continue Chan estimated that his case in chief in the Yarbrow trial would take two to two and one-half more weeks and that the defense in that trial would take approximately one week. Respondent questioned Chan as to why he had scheduled the Yarbrow trial when he did knowing of the October 13th trial date in petitioner's case. Chan informed the court that the Yarbrow trial date had been selected in March or April. Respondent then inquired why the October 13th date had been selected for petitioner's trial when Chan knew of the pendency of the Yarbrow trial. Chan stated that petitioner would not waive time and that October 13th was the most convenient date. Counsel for petitioner pointed out that petitioner had in fact waived time until October 13th.

Respondent asked Chan when he would be able to start trial. The prosecutor informed the court that he had another trial scheduled for October 25, 1976, and one scheduled for November 1, 1976, in a matter which had been pending longer than petitioner's case. Petitioner objected to any further continuance. Counsel for petitioner's codefendant indicated that he was not ready to proceed to trial as his client was ill. Respondent set the matter for trial on October 28, 1976, proceeding on the assumption that the Yarbrow trial would conclude by October 27th. ⁴

On October 21, 1976, the People noticed another motion for a continuance, ⁵ supported by a declaration by Chan virtually identical to the earlier one. Formal opposition to the motion was filed by petitioner. A hearing on the motion was had on October 28, 1976, before a new judge. At that time Chan gave a revised estimate of two to four more weeks in the Yarbrow matter. He stressed that the case pending against petitioner was complicated and that he was the only deputy district attorney who was prepared to try it. ⁶ He stated that he would need at least a week after the conclusion of the Yarbrow trial to prepare for trial of this case and requested a continuance of at least six weeks.

Petitioner strongly opposed a further continuance. Respondent suggested postponing the trial for one month. Counsel for the codefendant indicated that the codefendant was due to make an appearance in Texas on December 6th, that if trial in the instant matter were to commence as scheduled on October 28th, he estimated that it would conclude sufficiently soon to allow the codefendant to make his Texas appearance in December, but that if the People's request for continuance was going to be granted that trial in the within matter be set for January 11, 1977. Petitioner again objected. Respondent set the matter for trial on January 11, 1977, and advised the prosecutor that if he was not going to be available to try it then, to get some one else to do so.

On December 17, 1976, petitioner moved to dismiss pursuant to section 1382 of the Penal Code. The motion was resisted by the People, in the person of Deputy District Attorney Pachtman, who informed respondent that Chan was at that time engaged in arguing the Yarbrow matter. The motion to dismiss was denied on the ground that respondent had found on October 28th that good cause for a continuance existed. The within petition to this court followed. ⁷

Petitioner contends that he has been denied his constitutional and statutory rights to a speedy trial. Real Party contends that the prosecutor's engagement in another matter constituted good cause for granting a continuance. The issue is thus joined.

Section 1382 of the Penal Code provides in pertinent part: 'The court, unless good cause to the contrary is shown, must order the action to be dismissed in the following cases: . . . ( ) When a defendant is not brought to trial in a superior court within 60 days after the finding of the indictment . . . except that an action shall not be dismissed under this subdivision if it is set for trial on a date beyond the 60-day period at the request of the defendant or with his consent, express or implied, . . . and if the defendant is brought to trial on the date so set for trial or within 10 days thereafter.'

Section 1382 has been regarded as 'a legislative determination that a trial delayed more than 60 days is prima facie in violation of a defendant's constitutional right.' (Footnote omitted.) (Sykes v. Superior Court, 9 Cal.3d 83, 89, 106 Cal.Rptr. 786, 790, 507 P.2d 90, 94.) Dismissal is mandatory under the statute if the motion to dismiss is made after the 60 day period has elapsed and good cause for delay is not shown by the prosecution. The defendant need not show that he has been prejudiced by the delay. (Sykes v. Superior Court, supra; People v. Wilson, 60 Cal.2d 139, 151, 32 Cal.Rptr. 44, 383 P.2d 452.)

The last trial date to which petitioner consented was October 13, 1976. He therefore had a right to be tried no later than October 23, 1976. We take judicial notice, however, that October 23, 1976, fell on Saturday. Therefore the ten day grace period was extended until the following Monday, October 25, 1976. 'Good cause' under section 1382 is a matter within the sound discretion of the trial court. (People v. Superior Court (Lerma) 48 Cal.App.3d 1003, 122 Cal.Rptr. 267.) Taking all of the factors into consideration, including the codefendant's illness on October 13th and the protraction of the Yarbrow matter, we cannot say that the court abused its discretion in continuing petitioner's trial until October 28th, three days beyond the 10 day grace period.

A different situation exists, however, with respect to the next continuance. We...