People v. Ferguson

• Decision Date: 16 March 1990
• Docket Number: No. F011909,F011909
• Citation: 218 Cal.App.3d 1173,267 Cal.Rptr. 528
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Ronny Keith FERGUSON, Defendant and Respondent.

Page 528

267 Cal.Rptr. 528

218 Cal.App.3d 1173

The PEOPLE, Plaintiff and Appellant, v. Ronny Keith FERGUSON, Defendant and Respondent.

No. F011909.

Court of Appeal, Fifth District, California.

March 16, 1990.

As Modified March 27, 1990.

Review Denied June 21, 1990.

[218 Cal.App.3d 1175] John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Arnold O. Overoye, Senior Asst. Atty. Gen., W. Scott Thorpe, Edgar A. Kerry and George C. Spanos, Deputy Attys. Gen., Sacramento, for plaintiff and appellant.

Richard L. Phillips and George Bond, Sacramento, for defendant and respondent.

OPINION

VARTABEDIAN, Associate Justice.

The People appeal the lower court's order of dismissal. We reverse based upon the discussion that follows.

An information was filed on November 17, 1988, charging Ronny Keith Ferguson, respondent herein, with possession of amphetamine (Health and Saf.Code, § 11377, subd. (a)), and possession of a nunchaku (Pen.Code, § 12020, subd. (a)). ¹ As to the amphetamine charge, it was further alleged that the offense was committed while respondent was armed with a firearm. (§ 12022, subd. (a).) Respondent was arraigned on the following day when he pleaded not guilty and waived statutory time for trial. He was out of custody and so remained throughout the proceedings.

On January 30, 1989, the date originally set for trial, the case was trailed. On February 6, 1989, the court granted respondent's request to replace his attorney. Trial was reset for March 6, 1989, with respondent's acquiescence.. On February 23, his new counsel requested a new date for the hearing of pretrial motions and a later trial date of March 20, 1989. The motion was granted only to the extent of allowing a new motion date.

Evidently there were no available trial courts on March 6, 1989, resulting in the trailing of the case, first to March 7 and eventually to March 9, 1989, when the case was dismissed. The clerk's minutes of the hearing before the assigned trial judge include the following: "John King, counsel for the Defendant, moves the court to dismiss based upon the fact the People are not ready to proceed. Motion granted." There is no reference to the code section authorizing the dismissal.

The reporter's transcript indicates the circumstances surrounding the dismissal:

"THE COURT: This is the time set for the trial of the People of the State of California versus Ronnie Keith Ferguson.

"Mr. Ferguson is present in the courtroom with his counsel, Mr. King, and the People are represented by Mr. Sparks.

"Are we ready to proceed?

"MR. SPARKS: The People are not ready. As chief deputy, I am here specially to prepare the record in this case because I expect this Court to dismiss to the prejudice of the prosecution.

"As the presiding department well knew this morning when this case was assigned to this department for trial, Mr. Chris White is assigned for prosecution in this case. He has been in trial since Tuesday of this week, he expects to finish this afternoon. On Tuesday when the case he apparently is trying was assigned, he specifically requested that this case trail until Monday.

"As the Court can see from the record, the first day that this case was called for trial was on Monday of this week. We have until the 16th for the statutory period within which to try this case.

"Judge Westra trailed it to today to see what the status of Mr. White was. There was no notice to the District Attorney's Office that he intended to assign this case until Mr. White was available. Mr. White will be available this afternoon, he can pick a jury as soon as he finishes that case. In fact, this case could have been assigned behind his trial in that department. Judge Westra instead has chosen to prejudice the prosecution and the People of this county again, the second time this week.

"I cannot respectfully reassign this case no matter how simple it is in the eyes of Judge Westra. Each time I reassign a trial, it creates a domino affect [sic ] of another reassignment after another reassignment.

"I apologize to the Court if there is anger in my voice. It is not directed at you personally, it is directed to the presiding department of this Court.

"THE COURT: Mr. King.

"MR. KING: Well, we--the case was trailed until today, your Honor. We came ready for trial. I don't believe it was trailed to today just simply to see if someone else would be--if the District Attorney would have someone available. It was trailed until today to be referred out in the event there was an available court and the defendant was ready to proceed. Those conditions have been met, and it is the responsibility of the District Attorney to have someone available to prosecute it.

"MR. SPARKS: The defendant has not stated any prejudice--excuse me, your Honor, I didn't mean to interrupt.

"THE COURT: Are you making a motion to dismiss?

"MR. KING: I will make a motion to dismiss at this time. We are ready to proceed and that's sufficient. I don't believe we need to show prejudice. We have a right to proceed when there is an open court and when we're ready, and we're ready.

"....................

"THE COURT: All right.

"The Court having considered this matter and does know that this case has been trailing since Monday, it is my understanding that the case was trailing and that it is the responsibility of the District Attorney to try to find another attorney to handle the case when their assigned attorney is in trial, and it would appear as though the District Attorney's Office knew that their attorney was in trial and should have been prepared to assign it to another attorney. Understanding, of course, the problem, the work load you have in the office, Mr. Sparks, it would also appear that if Mr. White was available this afternoon, that he could have begun--another attorney could have begun the selection of this jury, and I have seen that done in other cases where the jury panel has been selected by an attorney different than the one that would try the case.

"MR. SPARKS: I've seen it done, too, your Honor, not to interrupt, but I have seen it done only in circumstances when the case was approaching the statutory limits which this is not.

"THE COURT: All right.

"And then also the fact that the Court does have, also like the District Attorney's Office, has a lot of trials going through the system right now, and we want to try and keep them running, and under the circumstances this is an available courtroom today and if the case did not go today, then we sit around and that's what I will basically be doing except for other stuff that I have under submission, but I mean as far as the availability during the day to try cases, we will be available.

"With that in mind, based upon the fact that the case has been trailing and there is no District Attorney available to try the case, I am going to have to grant the defendant's motion at this time, Mr. Sparks."

DISCUSSION

A. Was the dismissal pursuant to section 1382 or section 1385?

Section 1382 provides in pertinent part:

"The court, unless good cause to the contrary is shown, shall order the action to be dismissed in the following cases:

"....................

"(b) When a defendant is not brought to trial in a superior court within 60 days after the finding of the indictment or filing of the information ...; 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 the defendant's consent, express or implied, or because of the defendant's neglect or failure to appear and if the defendant is brought to trial on the date so set for trial or within 10 days thereafter....

"...................."

Section 1385, subdivision (a) provides:

"(a) The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons for the dismissal must be set forth in an order entered upon the minutes. No dismissal shall be made for any cause which would be ground of demurrer to the accusatory pleading."

The People contend that the court erred if it dismissed the case pursuant to section 1382 because the statutory time period had not run. Respondent contends that section 1382 has no application to this case whatsoever.

Section 1382 does not authorize the granting of a motion, as here, made within the 10-day period after the scheduled trial date, where the initial 60-day entitlement period has been waived. The arguments of the parties in this regard thus require no further discussion. Nonetheless, cases discussing section 1382 are valuable to our consideration of whether the court abused its discretion as we explain later.

Nor can the motion have been properly made pursuant to section 1385, argue the People, since a defendant is not authorized to make such a motion.

Respondent counters that the motion should be construed as having been raised by the People in their initial comment or by the court in its inviting such motion.

First, the prosecutor's comment that "I expect this court to dismiss" the case needs to be considered in its context. The chief deputy prosecutor was appearing before this trial department after the case was assigned there by the master calendar judge who had earlier refused to trail the case on this particular morning. In counsel's words, he was there "specially to prepare the record" expecting that this case would be dismissed, in spite of the prosecution's objection, like a similar case earlier in the week. Given this context, we cannot say we construe the motion to have been made by the People.

Second, any ambiguity in the record as to whether this was respondent's motion or the court's appears to be resolved by the minute's attribution of respondent as the moving party. However, we assume arguendo the court's solicitation places this matter within the...