People v. Bilbrey, A150273

• Decision Date: 31 July 2018
• Docket Number: A151401,A150273
• Citation: 236 Cal.Rptr.3d 381,25 Cal.App.5th 764
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. James Samuel BILBREY, Defendant and Respondent.

25 Cal.App.5th 764

236 Cal.Rptr.3d 381

The PEOPLE, Plaintiff and Appellant,

v.James Samuel BILBREY, Defendant and Respondent.

A150273

A151401

Court of Appeal, First District, Division 2, California.

Filed July 31, 2018

As Modified on Denial of Rehearing August 27, 2018

Certified for Partial Publication.^*

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Laurence K. Sullivan, Supervising Deputy Attorney General, Michael Chamberlain, Bridget Billeter, Deputy Attorneys General, for Plaintiff and Appellant.

Matthew A. Siroka, under appointment by the Court of Appeal, for Defendant and Respondent.

STEWART, J.

A jury found James Samuel Bilbrey guilty of attempted murder (Pen. Code,¹ §§ 187/664), aggravated mayhem (§ 205), assault with a deadly weapon (§ 245, subd. (a)(1) ), and battery with serious bodily injury (§ 243, subd. (d).) The jury also found true a knife-use enhancement (§ 12022, subd. (b)(1) ) and a great-bodily-injury enhancement (§ 12022.7, subd. (a) ). The trial court denied Bilbrey's motion for a new trial and sentenced Bilbrey to state prison for an aggregate term of 11 years to life. We affirmed the judgment on direct appeal. ( People v. Bilbrey (May 14, 2013, A129236), 2013 WL 1962969 [nonpub. opn.].)

In November 2016, the trial court granted Bilbrey's petition for a writ of habeas corpus, based upon the ineffectiveness of trial counsel, and ordered a new trial. The People filed a timely notice of appeal (A150273).

After filing the appeal, the People did not seek to set a trial date or bring the case to trial. Nor did they seek a stay of trial court proceedings. In March 2017, Bilbrey filed a motion to dismiss the information for violation of his speedy trial rights under section 1382. The People opposed, arguing their pending appeal in case A150273 deprived the trial court of jurisdiction to rule on that motion. The trial court granted the motion to dismiss on March 22, 2017. The People filed a timely notice of appeal from the order of dismissal (A151401). In response to the People's subsequent petition for writ of mandate, we stayed the dismissal order pending resolution of the People's appeal from the trial court's habeas ruling.

We granted Bilbrey's unopposed motion to expedite the appeal from the habeas ruling and, on our own motion, consolidated that appeal with the People's appeal from the dismissal motion for purposes of oral argument and decision.

We affirm in part and reverse in part both the order granting Bilbrey's petition for writ of habeas corpus and the order dismissing the case based on the violation of Bilbrey's right to a speedy trial.

BACKGROUND

I.-II.^**

III.Speedy Trial Motion and Dismissal

In March 2017, after the People noticed their appeal from the order granting Bilbrey habeas relief and a new trial, Bilbrey moved to dismiss the information for violation of his right to a speedy trial under section 1382. Bilbrey argued the statute required dismissal because he had not been brought to trial within 60 days of the November 21, 2016 habeas order. Bilbrey contended the trial court retained jurisdiction to rule on the motion under section 1506, which, he argued, required the People to seek a stay of the habeas order pending resolution of their appeal.

The People opposed the motion, arguing their pending habeas appeal divested the trial court of jurisdiction to rule on the motion. In the alternative, they argued in passing that their pending appeal constituted good cause for the delay in retrying Bilbrey.

The trial court heard Bilbrey's motion on March 22, 2017. The court found that the order granting Bilbrey habeas relief had been served on the relevant parties November 21, 2016, and that the People had 60 days thereafter to bring Bilbrey to trial. The court granted the motion, accepting Bilbrey's argument that, absent a stay under section 1506 or Bilbrey waiving time, he was entitled to dismissal under section 1382.

Two days later, the People filed a petition for writ of mandate, asking us to direct the trial court to vacate its dismissal order. We construed the petition as one for a writ of supersedeas and granted it, staying the dismissal order pending resolution of the People's appeal in case no. A150273.⁷

DISCUSSION

On appeal, the People contend the trial court erred by granting Bilbrey's petition for writ of habeas corpus and by granting his motion to dismiss.

I.^***

II.A151401. The Trial Court Retained Jurisdiction to Rule on Bilbrey's Motion to Dismiss, and the People Have Not Shown the Trial Court Abused its Discretion by Granting the Motion.

The People also appeal from the trial court's order granting Bilbrey's post-habeas motion to dismiss for violation of his right to a speedy trial under section 1382. They argue their appeal in case No. A150273 divested the trial court of jurisdiction to rule on Bilbrey's motion to dismiss because the motion was a "matter related to, embraced by, or affected by" the appeal from the habeas order granting Bilbrey a new trial. They also argue section 1506 of the Penal Code, which authorizes their appeal from the habeas order, did not require them to seek a stay of the order pending their appeal because "the trial court effectively ordered him discharged or released." As to the merits of the dismissal order, the People maintain dismissal was improper both because an appealed habeas order is not final and because the pending appeal constituted good cause to delay Bilbrey's retrial beyond the 60-day deadline.

In response, Bilbrey contends the trial court retained jurisdiction to rule on his motion to dismiss because the People failed to seek a stay of the habeas order as required by section 1506. The People were required to request a stay under that statute, Bilbrey argues, because the habeas order granted him " 'relief other than a discharge or release from custody.' " On the merits, Bilbrey argues dismissal was required because his retrial did not begin within 60 days of the November 21, 2016 habeas order as required by section 1382, and he notes the absence of authority indicating that a pending appeal, by itself, constitutes good cause to delay trial beyond the statutory deadline.

The parties do not dispute that Bilbrey has remained in custody pending the People's appeal from the habeas order granting him a new trial. Because part I of our Discussion concluded that Bilbrey was entitled to a new trial only on his attempted murder conviction, our analysis in this part is necessarily limited to whether dismissal of that count was lawful.

A. The Trial Court Retained Jurisdiction to Rule on the Motion to Dismiss

We review de novo the People's claim that the trial court lacked jurisdiction to grant Bilbrey's section 1382 motion. (See Day v. Collingwood (2006) 144 Cal.App.4th 1116, 1123, 50 Cal.Rptr.3d 903 [applying de novo standard of review in determining whether trial court had jurisdiction to rule on post-judgment sanctions motion].) Questions of statutory interpretation are also reviewed de novo. ( John v. Superior Court (2016) 63 Cal.4th 91, 95, 201 Cal.Rptr.3d 459, 369 P.3d 238.)

1. Analysis

"The general rule is that ' " '[t]he filing of a valid notice of appeal vests jurisdiction of the cause in the appellate court until determination of the appeal and issuance of the remittitur ' [citation], thereby divesting the trial court of jurisdiction over anything affecting the judgment. [Citations.]" ' " ( People v. Tulare County Superior Court (Gregory ) (2005) 129 Cal.App.4th 324, 329, 28 Cal.Rptr.3d 276 ( Gregory ), quoting People v. Flores (2003) 30 Cal.4th 1059, 1064, 135 Cal.Rptr.2d 63, 69 P.3d 979 ( Flores ).) The purpose of this common law rule " ' "is to protect the appellate court's jurisdiction by preserving the status quo until the appeal is decided. The rule prevents the trial court from rendering an appeal futile by altering the appealed judgment ... by conducting other proceedings that may affect it." ' " ( Gregory , at p. 329, 28 Cal.Rptr.3d 276, quoting Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1089, 86 Cal.Rptr.2d 602, 979 P.2d 963.) This rule applies where habeas corpus proceedings are concerned.⁹ ( Ibid . )

"Jurisdiction survives, however, where provided by statute." ( Flores , supra , 30 Cal.4th at p. 1064, 135 Cal.Rptr.2d 63, 69 P.3d 979.) "In such cases, the jurisdictional period generally is not tolled during the pendency of an appeal." ( Ibid. ) "The prosecution's right to appeal in a criminal case is strictly limited by statute." ( People v. Chacon (2007) 40 Cal.4th 558, 564, 53 Cal.Rptr.3d 876, 150 P.3d 755.) "Long standing authority requires adherence to these limits even though 'the People may thereby suffer a wrong without a remedy.' " ( Ibid ., quoting People v. Superior Court (Howard) (1968) 69 Cal.2d 491, 499, 72 Cal.Rptr. 330, 446 P.2d 138.)

In the criminal context, the Legislature has enacted statutes specifically addressing the effect of a pending appeal on proceedings in the trial court.

These statutes prescribe the effects of both direct appeals and habeas appeals. One statute concerning direct appeals is section 1242, enacted in 1874.¹⁰ Section 1242 reads, "An appeal taken by the people in no case stays or affects the operation of a judgment in favor of the defendant, until judgment is reversed." (§ 1242.) Similarly, section 1243 states that an appeal from a judgment of conviction (other than where a death sentence has been imposed) "does not stay the execution of the judgment or order granting probation ... unless the trial court shall so order." (§ 1243.) "The granting or refusal of such an order," section 1243 continues, "shall rest in the discretion of the court." (Ibid .) We read these statutes as effectively providing the prevailing party with the benefit of their success in the trial court pending resolution of any appeal, subject, in the case of appeals governed by section 1243, to the court's discretion to stay its...