People v. Cory

• Decision Date: 29 June 1984
• Docket Number: Cr. 44931
• Citation: 157 Cal.App.3d 1094,204 Cal.Rptr. 117
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. William John CORY, Defendant and Appellant.

Page 117

204 Cal.Rptr. 117

157 Cal.App.3d 1094

The PEOPLE of the State of California, Plaintiff and Respondent, v. William John CORY, Defendant and Appellant.

Cr. 44931.

Court of Appeal, Second District, Division 7, California.

June 29, 1984.

Hearing Denied Aug. 22, 1984.

Robert B. Le Corvec, Santa Monica, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Carol Wendelin Pollack and Gary R. Hahn, Deputy Attys. Gen., for plaintiff and respondent.

JOHNSON, Acting Presiding Justice.

Appellant was convicted of one count of robbery and sentenced to the mid-term of three years, plus an enhancement of two years for use of a firearm (Pen.Code, § 12022.5). ¹ On appeal he contends: (1) that he was denied his right to a speedy trial because not brought to trial within the time limit specified by Penal Code section 1382; (2) that the sentence enhancement must be stricken because the jury did not return a finding sufficient to support it; (3) that refusal to allow defense counsel to make a second closing argument to the jury denied appellant due process. We affirm.

I. WHILE APPELLANT'S TRIAL DID NOT COMMENCE WITHIN THE SPEEDY TRIAL LIMITATION PERIOD OF SECTION 1382, THE ERROR DOES NOT REQUIRE REVERSAL.

In California, the constitutional right to a speedy trial has been particularized by section 1382, which provides in relevant part that unless good cause to the contrary is shown, the trial court must dismiss a prosecution if the defendant is not brought to trial either within 60 days after the information is filed, or, if the defendant has consented to a later trial date, within 10 days after the date so set. If the trial court erroneously denies a motion to dismiss under section 1382, the defendant may obtain immediate pretrial appellate reversal by writ of mandate, without demonstrating prejudice stemming from the delay of trial. (People v. Wilson (1963) 60 Cal.2d 139, 149-151, 32 Cal.Rptr. 44, 383 P.2d 452.) However, if, as here, the defendant seeks review of the ruling on appeal after trial and conviction, he must establish not only error in denying his motion to dismiss but also prejudice therefrom in order to obtain reversal. (Id., at pp. 151-154, 32 Cal.Rptr. 44, 383 P.2d 452; People v. Johnson (1980) 26 Cal.3d 557, 574, 162 Cal.Rptr. 431, 606 P.2d 738.) In the case at bench, we conclude that appellant has proven error but not prejudice.

After numerous continuances at defendant's request or with his consent, the action was definitively set to commence trial on May 4, 1983. Owing to a weekend, the tenth day thereafter was May 16. On that date the case was assigned to a trial department. At 3:08 p.m. the matter was called, a panel of jurors was sworn, and 12 were seated. The court then stated:

"THE COURT: All right. Ladies and gentlemen, this court will stand in recess until tomorrow morning at 11:00 A.M.

"The reason for that is the court is in the midst of another trial, and I thought I would meet you this afternoon and say hello to you and come back tomorrow at 11 o'clock.

"Hopefully by 11 o'clock I will be through with the original case. It is a non-jury trial.

"All of you jurors are ordered to return to this department tomorrow morning at 11:00 A.M. That's it."

The jury was then excused, whereupon defense counsel objected that "the mere impanelling of the jury is not sufficient to toll the time period" by commencement of trial. The court responded as follows:

"THE COURT: You understand the problem with the Court is that I am in the middle of this trial, and I am making every effort to conclude both cases and also to give your client an opportunity to have his day in court.

"For that reason, to protect your client, to protect the case, we impanelled the jury.

"It may be that tomorrow we may not be able to have a jury. Maybe we won't be able to have these jurors here, they would be unable. I believe we have two death penalty cases upstairs.

* * *

* * *

"We share our panels with the Municipal Court, and there are other ten-day cases, so this court really--I did my best."

The May 16 proceedings thereupon concluded, at 3:17 p.m. At 11:17 a.m. the following day proceedings recommenced. Defense counsel promptly moved for dismissal under section 1382, again asserting that trial had not commenced on the critical tenth day. The motion was denied and the court then proceeded with voir dire.

In determining whether appellant was "brought to trial" within the meaning of section 1382 when the court impaneled a jury but then recessed the case to the next day, apparently to conclude another trial then in progress, we are both guided and governed by a recent decision of our Supreme Court rendered in a factually similar case. In Rhinehart v. Municipal Court (1984) 35 Cal.3d 772, 200 Cal.Rptr. 916, 677 P.2d 1206 ("Rhinehart "), a jury was selected on the tenth day but the case was then continued to several days later, the court stating on the record that it was engaged in another trial and that the jury was being impaneled to avoid dismissal under section 1382. On these facts, the Supreme Court held the defendant had not been timely brought to trial. Disapproving a prior decision that jury impanelment per se constituted a "bringing to trial" within the meaning of section 1382, ² the court observed that such a mechanistic interpretation would tolerate evasive practices. Instead, the court stated, consideration must be given to "the trial court's availability and readiness to try a case." (35 Cal.3d at p. 779, 200 Cal.Rptr. 916, 677 P.2d 1206.) The court endorsed the holding of Sanchez v. Municipal Court (1979) 97 Cal.App.3d 806, 813, 159 Cal.Rptr. 91, that section 1382 is satisfied if, in addition to the swearing of a jury, the record objectively reflects that the case has been assigned to a court that is ready to process it and "has committed its resources to the trial." The Rhinehart court then stated its holding as follows: "[A]n accused is 'brought to trial' within the meaning of section 1382 when a case has been called for trial by a judge who is normally available and ready to try the case to conclusion. The court must have committed its resources to the trial, and the parties must be ready to proceed and a panel of prospective jurors must be summoned and sworn." (35 Cal.3d at p. 780, 200 Cal.Rptr. 916, 677 P.2d 1206; fns. omitted.)

Construing the " 'objective record' " (id., at p. 778, 200 Cal.Rptr. 916, 677 P.2d 1206) in light of the standards enunciated in Rhinehart, it cannot be said that appellant was brought to trial on May 16, 1983. The trial court repeatedly acknowledged that it was in the middle of another trial and therefore could not proceed with appellant's, beyond the brief impanelment process, until the following day. Thus, as of the critical tenth day the court was not "available and ready to try the case to conclusion," nor had it "committed its resources to the trial" of appellant.

The People argue that the facts that jury impanelment occurred late in the day and that the proceedings recommenced the next day at the time the trial court had said they would render this case determinatively comparable to Sanchez v. Municipal Court, supra, and People v. Amati (1976) 63 Cal.App.3d Supp. 10, 134 Cal.Rptr. 61, in both of which cases similarly timed proceedings were held to constitute an effective commencement of trial. But the present case is critically different in that here--as in Rhinehart, and unlike Sanchez and Amati--the mid-afternoon adjournment of the case to mid-morning the next day was expressly taken to enable the court to conclude another trial in the interim. The trial court's clearly expressed unavailability due to another pending trial establishes that the proceedings here were insufficient to meet the Rhinehart standard of judicial readiness for and commitment to the trial process on the critical day.

Since appellant was not brought to trial on the final day allowed by section 1382, the remaining question under the statute is whether good cause was shown for not dismissing the action. The People have the burden of showing such good cause (Rhinehart, 35 Cal.3d at p. 781, 200 Cal.Rptr. 916, 677 P.2d 1206), and they have not attempted to do so here. Moreover, the record does not independently reflect any such good cause. The delay in commencement of appellant's trial was apparently the result of calendar congestion in the trial court. Such congestion cannot constitute good cause for refusing to dismiss under section 1382 unless " 'exceptional circumstances' " were present to engender the congestion. (Rhinehart, 35 Cal.3d at pp. 782-783, 200 Cal.Rptr. 916, 677 P.2d 1206.) The record here does not intimate the existence of any such exceptional circumstances. The trial court therefore should have granted appellant's motion to dismiss under section 1382.

However, as we noted at the outset, since appellant's claim of error under section 1382 comes to us on appeal after conviction rather than on pretrial petition for writ, the error we have identified does not require reversal unless it is determined to have been prejudicial. There is no basis for such a determination in this case. While appellant's trial did not commence until well after the information was filed, the period of delay attributable to violation of section 1382 was less than one day, and appellant does not in any way suggest that this delay impaired the fairness of his trial. Furthermore, this is not a case in which pretrial dismissal would have barred further prosecution by reason of either section 1387 or the statute of limitations. Therefore, there being no showing or even assertion of prejudice flowing from the erroneous failure to dismiss under section 1382, that error does not require that the judgment be reversed. (People v. Johnson, supra, 26 Cal.3d at p. 574, 162 Cal.Rptr. 431, 606 P.2d 738.)

II. THE JURY'S FINDING WITH RESPECT TO APPELLANT'S USE...